Den Bleyker v. King County

Mackintosh, J.

Dimmen Den Bleyker, the appellant, sued the respondents, King county and A. J, Stuckey and wife, to recover damages for personal injuries sustained as the result of stepping off the edge of a dock. The appellant, being a nonresident of King county, was required to, and did, furnish a nonresident cost bond, with J. J. Hewitt and Frank B. Cole as sureties. At the trial of the case in the superior court, a motion for nonsuit was granted, and judgment of dismissal and for costs in favor of all the defendants was rendered against the plaintiff and against the sureties upon his cost bond. Thereafter the appellant attempted to perfect an appeal to this court, and in that attempt filed his appeal bond, with J. J. Hewitt and Frank B. Cole as sureties thereon, the same parties against whom the judgment below was entered. Respondents have moved this court that the appeal be dismissed for the reason that no appeal bond with sureties as required by law has been furnished or filed.

In Smith v. Beard, 21 Wash. 204, 57 Pac. 796, the court said:

“The sureties on this bond are the parties against whom the judgment appealed from was entered, and the fact that they are a surety company does not distinguish them from any .of the rest of the judgment debtors. So that, in effect, this is a bond without any surety, and, inasmuch as it purports to be a stay bond and appeal bond both, it is not the bond provided by the statute. This being a matter affecting the substance, and not the form, of the appeal bond, it is a substantial defect, and is not such a defect as must be moved against in the superior court.”

In David v. Guich, 30 Wash. 266, 70 Pac. 497, we said:

“The object of an appeal bond is to furnish the respondent with additional security during the pendency of the appeal. The judgment debtors are already bound by the judgment. Their obligation is not increased in any way by the mere formal furnishing of a bond signed by them. Such a bond would be valueless to the respondents, for, after a successful suit upon such bond, they would have nothing but a judgment, which they already have. Hence the bond is utterly worthless, and not in any sense the bond contemplated by the statute. ’ ’

So here, the respondents having a judgment against Hewitt and Cole, if they, the respondents, were suecessful in this court on hearing the case on the merits and were forced to sue on the, purported appeal bond and were successful in such suit, they would have nothing in addition to the judgment which they already have against Hewitt and Cole, and as we said in David v. Guich, above, such a bond is worthless.

Appellant claims that, the bond here being not a supersedeas bond but an appeal bond, the rule established in the Smith and David cases does not apply. However, although the Smith case involved a supersedeas and appeal bond, the David case involved only an appeal bond, and is therefore strictly in point with the case at bar.

For these reasons, the appeal must be dismissed, and it is so ordered.

Holcomb, C. J., Main, Parker, and Mitchell, JJ., concur.