2 S.D. 472 | S.D. | 1892
This action was commenced and tried in a justice court of Sully county, and judgment rendered in favor of defendant. From this judgment the plaintiff appealed to the county court of that county. When the case was called for trial in the county court, counsel for defendant moved the court to dismiss the appeal, on the grounds: (1) Because the attempted appeal was not taken according to law; (2) because no legal or proper undertaking was entered into, given, or filed on the pretended appeal; (3) because there is only one legal and qualified surety who signed and executed the undertaking on appeal. The motion was denied, and a trial had before a jury, resulting in a verdict and judgment for the plaintiff, from which judgment the defendant has taken an appeal to this court. Defendant assigns as error the overruling of the motion to dismiss the appeal, error of the court in giving certain instruetions to the jury, and in allowing the jury to take with them to the jury-room a part of the pleadings and justice’s transcript in the case and part of the instructions of the court.
We will first consider the motion to dismiss the appeal. It appears from the abstract that the undertaking on appeal was
Counsel for respondent contends that, conceding that Sweatland was disqualified from becoming a surety on the undertaking, still, as Section 6133, Comp. Laws, governing appeals from justices’ courts, has provided the time and manner of accepting to the sufficiency of sureties in an undertaking, that is the only remedy of which the defendant in this action could avail himself, and that, by a failure to except to the sufficiency .of the sureties within the time and in the manner provided by that section, he has waived his right to object to the undertaking, and the motion to dismiss in the county court came too late, and should therefore have been denied. We can not agree with counsel in this contention. The clause of that section providing for excepting to the sufficiency of the sureties is as follows: “The adverse party may except to the sufficiency of the sureties within five days after the filing of the undertaking, and, unless they or other sureties justify before the justice before whom the appeal is taken, within five days thereafter, upon notice to the adverse party, to the amounts stated in their affidavits, the appeal must be regarded as if no such undertaking had been given. ” It will be seen from the clause quoted that the only sufficiency of the sureties that can be excepted to under that section is as to the pecuniary responsibility of the sureties, and not as to their competency to enter into a contract as such sureties. The legislature evidently intended to limit the exceptions to the sufficiency of sureties to such pecuniary responsibility only, as the law provides “that, unless they or other sureties justify * * * to the amount stated in their affidavit, the appeal must be regarded as if no such undertaking had been given.” The exceptions,
As it was manifest in this case that the appeal was taken in good faith, the county court was authorized to permit the plaintiff to file a new undertaking, and thereby perfect his appeal, notwithstanding the pendency of the motion to dismiss the appeal. Howard v. Harman, supra; Coulter v. Stark, supra; Billings v.