124 Iowa 58 | Iowa | 1904
The defendants, Bower & Perkins, were parties to- a written contract with -one J. L. Sutton. The latter assigned his interest in the contract to L. E. Sutton, who brought suit upon it against Bower & Perkins before a justice of the' peace of Kossuth county. On the return day ¡the defendants .entered an appearance to the action, and, trial being had, judgment was rendered against them. Thereupon, on .same day, defendants undertook to perfect an appeal to the-district court, and filed a bond for that purpose. The bond was -in due form, and sufficient in all respects, except that it named J. L. Sutton as the obligee, instead of L. E. Sutton, who was the plaintiff in the action. The justice 'of- -the peace approved the bond, and 'forwarded a- transcript of his docket entries in the case to the office of the clerk of the district court. At the next term of the district court the
The action taken by the district court is sought to be sustained under Code, section 357, which provides that no defective bond shall prejudice the party giving it, if within a reasonable time after discovery of the defect, it shall be so rectified, as not to materially injure the other party. In our judgment, the statute cited is not applicable to a case like the one at bar. To entitle the defendants to an appeal, and, to give the district court any jurisdiction, it was necessary that an appeal bond for the benefit of the plaintiff, L. E. Sutton, be filed and approved within the limit of twenty days. No such bond was made or filed until after the time for an appeal had passed. The bond actually filed named J. L. Sutton — another and different person — as obligee. If the •bond had run to the proper obligee, so as to have been entitled to be considered a bond in that action, then any mere informality or irregularity could, without doubt, be cured by amendment; but, until a bond sufficient to invoke the jurisdiction of the district court has been furnished, there is nothing to amend. The case is fairly within the principle applied in Minton v. Ozias, 115 Iowa, 148, where the bond had been duly signed by the appellant. In thé district court it was' discovered that the bond had not been signed by a surety, as provided by law, and we held the district court was without jurisdiction to permit the filing of a new bond or to try the case. Many of the authorities cited by counsel for appellant from other States are in point. See, especially, Lovitt v. R. R., 26 Kan. 297; Vaill v. Town Council, 18 R. I. 405 (28 Atl. Rep. 344); Larson v. R. R., 5 Utah, 621 (19 Pac. Rep. 196); St. Louis Ry. v. Neal, (Tex. Civ. App.) 65 S. W. Rep. 49; Long v. Smith, 39 Tex. 160; Nones v. McGregor (Tex. Civ. App.) 35 S. W. Rep. 1083.
The cases cited by appellees (Brock v. Manatt, 1 Iowa,