State ex rel. Brewer v. Chapman

Per Curiam.

The respondent moves to dismiss the appeal, on the ground that no sufficient bond was given by the appellant within the time limited by law. It appears that the first appeal bond was filed on the 22d day of March — the day the notice of appeal was served. Exceptions were thereafter taken to the sufficiency of the sureties on this bond, and they were required to appear and justify. They failed to appear at the time and place specified, and counsel for appellant admitted their insufficiency. Thereafter, within five days from such time, a second appeal bond was given by the appellant, and the respondent excepted to the sufficiency of the sureties upon such bond and notified them to attend on the 28th day of April, and justify. Upon the hearing, the court found the second bond insufficient in that the Ohio Investment Company, a corporation appearing upon said bond as one of the sureties, had no authority to become a surety, and that the remaining sureties were insufficient. The relator excepted to this ruling, but applied for an order permitting an additional surety, whereupon the court entered an order permitting the appellant to give another surety in lieu of the Ohio Investment Company on said day, which was done, the other sureties consenting, and to which order the respondent excepted.

The statute (Laws 1893, p. 125, § 11), provides that, in case a second appeal bond be found insufficient, no new bond can be given in lieu thereof. The appellant contends that the substitution of the surety upon the bond previously filed was not the giving of a new bond, but we are unable to agree with this contention. The bond became another and different instrument by the substitution of a new surety, and the mere fact that such surety was permitted to sign the bond previously filed does not alter the proposition, for the bond was invalid until executed by the new surety. There is nothing in the record to show that the Ohio Investment Company had any authority to sign the bond originally as a surety, and the finding of the court in that particular must be sustained. The action of the court in permitting it to be amended was in effect allowing the appellant to give a third bond, which the statute prohibits.

The motion to dismiss must be granted.