Morse v. Schaake , 141 Kan. 473 ( 1935 )

The opinion of the court was delivered by

Smith, J.:

This was an action that was attempted to be appealed to the district court from a judgment of the justice of the peace. Judgment was for plaintiff, dismissing the appeal. Plaintiff was awarded a judgment in justice court.

The bond filed in the justice court by defendant when the appeal was attempted was in the following form:

“Whereas, on the 8th day of March a. d., 1934, the said plaintiff obtained a judgment against the said defendant on the docket of the said A. R. Harvey, J. P., for $250 dollars and (costs) taxed therein at five - dollars; and the said defendant intends to appeal therefrom to the district court in and for said county.

“Now, Therefore, William L. Schaaice of -does hereby, pursuant to the statute in such cases made and provided, promise and undertake in the sum of five hundred and five dollars, that the said appellant will prosecute his said appeal to effect, and without unnecessary delay; and if judgment be adjudged against him on said appeal, he will satisfy said judgment and costs.”

Plaintiff filed a motion asking the appeal be dismissed because no notice of appeal, as required by statute, was filed by the defendant, William L. Schaake, with the justice of the peace within ten days after the rendition’of judgment against him by said justice of the peace.

When this motion was filed, the defendant, in open court, asked permission to amend the appeal bond by making it read so as to be binding on defendant to pay the costs in any event. This request to amend the bond was denied and the motion to dismiss the appeal was sustained. From that judgment this appeal is taken.

The statute under which the appeal was attempted is R. S. 1933 Supp. 61-1002. That section is as follows:

“The party appealing shall file a good and sufficient bond in the court from which the appeal is taken to secure the costs of the appeal, unless, by reason of his poverty, he is unable to give security for costs, which fact shall be shown by affidavit filed in said court at the time the appeal is taken: Provided, That nothing in this act shall excuse the party appealing from furnishing the bond required by section 61-1011 of the Revised Statutes of Kansas of 1923. And thereupon the appeal shall be deemed perfected.”

Plaintiff argues that the appeal was properly dismissed under the authority of Auto Trunk Co. v. Hahn, 138 Kan. 36, 23 P. 2d 585. The bond in this case is substantially the same as the bond considered and passed on in that case. There are no distinguishing features.

Under the authority of that opinion, the judgment of the trial court is affirmed.

Thiele, J., not sitting.