| Kan. | Jan 15, 1879
The opinion of the court was delivered by
A judgment having been rendered in the district court of Leavenworth county in the following entitled case, an undertaking was executed and filed therein, which reads as follows:
{Court, and Title.) “We, the undersigned, Thomas P. Fenlon and Charles W. Dougherty, as principals, and Edward Stillings as surety, do hereby undertake to the said above-mentioned William Porter, Edward G. Peniston, and Benjamin Betts, in the sum of one thousand dollars, that the said Charles W. Dougherty and Thomas P. Fenlon will pay the condemnation-money, and costs, in case the judgment heretofore rendered in the above-entitled action shall be affirmed in whole or in part. . Thomas P. Fenlon.
C. W. Dougherty.
E. Stillings.”
Stillings duly justified as surety according to section 723 of the code (Gen. Stat. 771), and the undertaking was duly approved. Two days thereafter a petition in error was filed in the supreme court by Dougherty and Fenlon, to reverse said judgment, but the judgment was affirmed. (Dougherty v. Porter, 18 Kan. 206" court="Kan." date_filed="1877-01-15" href="https://app.midpage.ai/document/dougherty-v-porter-7884365?utm_source=webapp" opinion_id="7884365">18 Kas. 206.) Afterward the plaintiffs, Porter, Peniston and Betts, commenced this action in the district court of Leavenworth county against Stillings on said undertaking, and recovered a judgment thereon. The defendant Stillings, now as plaintiff in error, brings the case to this court for review.
The defendant (plaintiff in error) claims that said undertaking is void — 1st, because it was executed and filed in the court below two days before any petition in error was filed
We think said undertaking was valid. It is true, that before any proceedings in the district court can be stayed because of any proceedings in error begun or contemplated in the supreme court, both an undertaking and a petition in error must be filed; one alone is not sufficient. The undertaking may be filed first, or the petition in error first. But “ before an undertaking shall operate to stay execution of the judgment or order, a petition in error must be filed in the appellate court.” (Code, § 554; Gen. Stat. 738, 739.) This view of the law we think is in accordance with nearly the universal practice of the bar of the state, and it seems to be in harmony with the practice of the learned plaintiff in error. Said judgment could be affirmed only by the supreme court, and hence said undertaking was certain enough in this respect. There was no issue upon which said evidence could be introduced, and hence the court below did not err in excluding it.
The judgment of the court below will be affirmed.