Citation Numbers: 24 Neb. 318
Judges: Maxwell, Other
Filed Date: 7/15/1888
Status: Precedential
Modified Date: 7/20/2022
An alternative writ of mandamus was issued in this case, requiring the defendant, who is a justice of the peace, to approve a certain appeal bond in an action tried before him, or show cause why he refuses to do so. To this writ the defendant made return, as follows: “ In answer to the petition filed herein, and in return to the alternative writ of mandamus issued in the above entitled cause, says: That he admits that, on the 23d day of January, 1888, one
“2d. Respondent denies that the defendants in said suit before this defendant, as justice of the peace, or either of them, within the ten days allowed by law filed with this defendant a good and sufficient appeal undertaking for the purpose of perfecting an appeal in said cause.
“3d. Respondent denies that said defendants in said forcible detainer proceedings, or either of them, demanded of this respondent a transcript, or made any tender in a legal manner of the requisite amount of money to cover the fees of this respondent, as justice of the peace, for the writing up of said transcript.
“4th. Respondent admits that he refused to approve a •certain pretended appeal bond handed to him by the relator, David Morrison, on or about the second day of February, 1888, and as a reason for said refusal upon the part of this respondent, as said justice of the peace, to so approve said bond as an appeal bond, said respondent,
“5th. Alleges that the persons who signed, or pretended to have signed, said undertaking did not sign or •execute the same in the presence of this respondent, as such justice of the peace, and that said undertaking was signed, if signed at all, by the parties purporting to sign the same, out of the presence of this respondent, and that it was out of the power of this respondent to satisfy him.self as to the solvency of said signers, or pretended signers, nor did he have any positive knowledge that said undertaking was signed at all by the parties by whom it .purported to be signed, and for these reasons respondent did not feel it to be the exercising of good judgment and sound discretion to approve said undertaking, and therefore he refused to do so.
A referee was appointed to take testimony as to the sufficiency of the sureties on the appeal bond filed with the-defendant. A large amount of testimony was taken, which is now before the court. From this testimony it appears that at least two of the sureties were amply sufficient, of which the defendant had knowledge.
Sec. 1030 of the code provides that, “ Exceptions to the-opinion of the justice, in cases under, this chapter, upon questions of law and evidence, may be taken by either party, whether tried by a jury or otherwise, or either party may appeal from the judgment rendered by such justice by giving bond, with two responsible sureties to be approved by the justice, conditioned: If the plaintiff appeals, to-satisfy the final judgment and costs; if the defendant appeals, to satisfy the final judgment and costs, and pay a reasonable rent for the premises during the time he wrongfully withholds the same.”
There is no requirement in the statute that the sureties shall appear before the justice and sign an appeal bond. If there is doubt as to the genuineness of the signatures, he may, no doubt, require proof that the bond was actually signed by the persons whose names appear thereon. But
Judgment accordingly.