Brown v. Jessup ( 1890 )

Strahan, J.,

delivered the opinion of the court.

The only .question presented on this appeal is the alleged insufficiency of the appeal from the justice. It was contended by the respondent that the notice of appeal was filed after the undertaking, and that there was therefore no undertaking given." The law regulating appeals from courts of record does prescribe the order in which the notice and undertaking shall be filed; that is, the undertaking must be filed after the filing of the notice, and it has been often held that a disregard of its provisions vitiated the appeal. Hill’s Code, § 537. But the act regulating justice’s courts, and appeals therefrom, do not contain those provisions. Section 2118 allows an appeal fi otn a justice’s judgment to the circuit court within thirty days from the date of the entry thereof; and section 2119 is as follows: “An appeal is taken by serving notice thereof on the adverse party, and filing the original, with the proof of service endorsed thereon, with the justice, and by giving the undertaking for the costs of the appeal as hereinafter provided. ” Although named in the section after the notice of appeal, it does not expressly direct that the undertaking must be filed after the notice of appeal. No doubt the better practice would be to first serve the notice of appeal' and endorse the proof of service thereon, and then file the same with the justice, together with the necessary undertaking. But the question which we must determine is, does a disregard of this order of procedure destroy the appeal or render it ineffectual? We think it does not. Such, a construction of the statute would introduce a degree of strictness and technicality into the practice in justice’s courts very much beyond the requirements of the statute, and at variance with its spirit and purposes. Both the undertaking and the notice were filed within the thirty days after the entry of judgment, and the notice had endorsed thereon at the time it was filed, proof of service, and this appears to be all that is requisite.

2. The name of the surety is not inserted in the body of the undertaking, and in the affidavit endorsed thereon his name is left blank at the beginning, thus: ‘ ‘-being duly sworn,” etc., but his name is signed both to the undertaking and the affidavit, and we think this is sufficient. Dore v. Covey, 13 Cal. 502, and ex parte Fulton, 7 Cowen, 484, hold that it is not necessary to insert the name of the surety in the body of the undertaking, and that his signature thereto sufficiently indicates his intent to be bound by tbe terms of tbe undertaking, wbicb is all tbe law requires.

3. The objection to the affidavit does not fall within Stark v. Stafford, 14 Or. 317. In that case there were two blanks in the affidavit, one at the beginning as here, and the other blank not being filled, the qualification of the surety did not appear. It read, “worth the sum of-.” The court held this to be not in compliance with law and insufficient without pointing out the particulars. Section 2123 requires that sureties in an undertaking on appeal must have the qualifications of bail upon arrest. Section 118 prescribes what the qualifications of bail upon arrest shall be. In Stark v. Stafford, supra, no amount was specified and it did not appear that the surety was worth the amount specified over and above all debts and liabilities and exclusive of property exempt from execution. The cases are clearly distinguishable.

The court below therefore erred in dismissing the appeal, and its judgment must be reversed and the cause remanded for such further proceedings as law and justice' may require.