Hanson v. District Court of Third Judicial District in & for Salt Lake County

142 P.2d 199, 105 Utah 380, 1943 Utah LEXIS 24

• Court: Utah Supreme Court
• Decided: October 18, 1943
• Docket: No. 6605.
• Status: Published

Opinions

WOLFE, Chief Justice.

On petition of plaintiff, we issued an alternative writ of mandamus directing the District Court for Salt Lake County and one of its judges, above named, to reinstate the case of James L. Morris, doing business as James L. Morris Plumbing and Heating Company, Plaintiff, versus Glenn Hanson, Defendant, appealed from the City Court of Murray City, Utah, or to show cause why the same should not be so reinstated and tried de novo in the District Court.

It is alleged that the files in the case, including papers entitled and filed in the District Court, were returned to the Clerk of the Murray City Court upon the order dismissing the appeal, and that the City Court Clerk has since refused to return them or any part thereof to the Clerk of the District Court. We have none of the original files before us.

The petition and answer here disclose that on May 5,1942, plaintiff Morris below obtained judgment against defendant Glenn Hanson in the Murray City Court for $168.20 and interest. Notice of the judgment was served on Hanson on the same day, and within thirty days therefrom, on June 1, 1942, Hanson served and filed his notice of appeal to the District Court. Also, in time, June 5, 1942, he filed in the City Court the following instrument, called by him an “Undertaking”:

“Whereas, the above named defendant, Glenn Hanson, is desirous of appealing from a judgment in the sum of $168.20 from the City Court of Murray City, Utah, Salt Lake County, State of Utah;

“We, Nick V. Melis and Burt V. Melis, are hereby bound in the sum of Three Hundred Dollars ($300.00) as cost as provided in Revised Statutes of Utah 1933, Sec. 104-41-7.

“Whereas, we Nick V. Melis and Burt V. Melis, the above named sureties will not be bound jointly or severally in excess of $300.00

“In witness Whereof, we have hereunto set our hands and seals this 5th day of June, A. D. 1942.

“Nick V. Melis

“Gust V. Melis

“State of Utah, County of Salt Lake — ss.:

“Nick V. Melis and Burt V. Melis, whose names are subscribed to the above undertaking, being duly sworn each for himself says: That he is a resident and property holder in the County of Salt Lake, State of Utah, and is worth the sum in said undertaking above debts, exclusive of property exempt from execution.

“Nick V. Melis

“Gust V. Melis

“Subscribed and sworn to before me this 5th day of June, A. D. 1942.

“O. H. Matthews,

“Notary Public.”

On June 10, 1942, Morris served and filed a “Notice of Exception to the Sufficiency of Sureties.” No response was made by Hanson to this Notice. On July 3, 1942, Hanson filed in the District Court another instrument entitled “Amended Undertaking,” in words and figures as follows:

“Whereas, the above-named defendant, Glenn Hanson, is desirous of appealing from a judgment in the sum of One Hundred Sixty-eight and 20/100 ($168.20) Dollars from the City Court, in the City of Murray, County of Salt Lake, State of Utah.

“We, Nick V. Melis and Gust V. Melis are hereby bound in the sum of Four Hundred Thirty-Six and 40/100 Dollars as cost and stay bond as provided in the Revised Statutes of Utah 1933, Section 104-77-6.

“Whereas we, Nick V. Melis and Gust V. Melis, the above-named sureties, will not be bound jointly or severally in excess of Four Hundred Thirty-Six and 40/100 Dollars.

“In Witness Whereof, we have hereunto set our hands and seals this 30th day of June, A. D. 1942.

“Nick V. Melis

“Gust Y. Melis

“State of Utah, County of Salt Lake — ss.:

“Nick V. Melis and Gust Y. Melis, whose names are subscribed to the above undertaking being duly sworn each for himself says: That he is a resident and property holder in the County of Salt Lake, State of Utah, and is worth the sum in said undertaking above all debts, exclusive of property exempt from execution.

“Nick V. Melis

“Gust V. Melis

“Subscribed and sworn to before me this 30th day of June, A. D. 1942.

“O. H. Matthews,

“Notary Public.”

On July 7, 1942, Morris served and filed a further notice excepting to and demanding that the sureties on this “Amended Undertaking,” (the same sureties named in the first “Undertaking”) appear and justify pursuant to the statutory provisions. No steps were taken by Hanson in compliance with this notice and demand.

Written motion was then served and filed by Morris to dismiss the appeal, setting out five specific grounds therefor, the last one, under which the District Court granted the motion, reading:

“(e) That neither of said undertakings on file herein could be enforced against the purported sureties named therein because such bonds are strictly construed in favor of the surety and the sureties thereon by the terms of said undertakings are bound to no named person and are bound for no particular purpose.”

The District Court entered its findings, conclusions and judgment on February 26, 1942, in which it held:

“1. That said purported undertakings on file herein dated June 5, 1942 and June 30, 1942, particularly referred to in the Findings of Fact herein, are, and each of them is, defective, insufficient and inadequate as an appeal bond for the reason that there is no obligee named therein and the conditions under which the sureties thereon are to be hound are not set forth in said undertakings.”

The District Court expressly denied the motion to dismiss on all the other grounds therein stated.

104-77-6, U. C. A. 1943 (the same in R. S. U. 1933), made applicable to City Courts by 20-4-29, U. C. A. 1943, provides, in the pertinent parts as follows:

“Within five days after filing the notice of appeal, an undertaking shall be filed with the justice, or with the clerk of the district court, with two or more sureties, in the sum of $100, for the payment of the costs on the appeal; and, if a stay of proceedings is claimed, in an additional sum equal to twice the amount of the judgment, including costs, when the judgment is for the payment of money, * * *; and shall he to the effect, when the the action is for the recovery of money, that the appellant will pay the amount of the judgment appealed from and all costs, if the appeal is withdrawn or dismissed, or the amount of any judgment and all costs that may he recovered against him in said action in the district court; and that, if the appellant does not make such payment within thirty days after the entry of judgment in the district court or after the date of withdrawal or dismissal of the appeal, judgment may be entered on motion of the respondent in his favor against the sureties for such amount with interest and costs; * *

The court dismissed the appeal because it concluded that each of the undertakings on file were “defective, insufficient and inadequate” as an appeal bond because there was no obligee named therein and the conditions under which the sureties thereon were to be bound was not set forth in the undertaking.

Was the conclusion of the lower court correct? We think it was not.

The defendant-appellant filed on June 5, 1942, a paper designated as an “Undertaking” the body of which is set out above. Since we have not the records before us which should be brought up on certiorari, it does not appear definitely that this “undertaking” was captioned with the title of the case. If it were it appears to us that an obligation on the part of the two signers to pay the appellee the costs on appeal if the defendant Glenn Hanson lost or the case was dismissed could be spelled from the wording. It is difficult to see to whom besides the appellee the signers would be bound for costs. The obligee would therefore be readily ascertainable in accordance with the principle laid down in the note page 409, Ann. Cas. 1915A, where it is stated:

“In harmony with the reported case, there is considerable authority for the proposition that where it is apparent from a bond to whom it is payable, the fact that there is no obligee or nominee does not render the obligation void, and it is a perfect obligation in favor of the person to whom it is evident it is intended to be paid.”

In the case of United States Fidelity & Guaranty Co. v. Hansen, 36 Okl. 459, 129 P. 60, 65, Ann. Cas. 1915A, 402, the court said:

“The failure to formally designate the obligee did not vitiate the bond. The recitals in the condition made it clear for whose benefit the bond was given. The law provided that the bond must be given to the minor, and, when the bond clearly showed that it was given to secure the faithful performance by R. S. Steele of his duties as guardian of Rosa Little Crow, the surety could not escape liability because the minor’s name was not written in the first blank left for that purpose.

“As said by the Supreme Court of New Hampshire in Judge v. Ordway, 23 N. H. 198 : ‘We notice the kind of bond the law authorizes the judge to receive, and requires him to exact. Thus we know what the parties must have intended, much better than by any rules of construction; and we were bound to give the language used such construction as will give effect to the intention of the law, and of the court, and of the parties concerned, if it can be done consistently with the language used, however unskillfully the instrument may be drawn, and though some of the expressions used might be understood to import a different meaning, if they were to be construed merely by the ordinary rules of interpretation, and without that same light which the statute affords us as to the intention of the parties and of the probate court.’ ”

In Downing v. Rademacher, 136 Cal. 673, 69 P. 415, 416, it was said:

“The omission of a payee in the undertaking is immaterial. The Code does not require that it shall contain the name of the payee, and a proper construction of the undertaking renders the sureties liable thereon to the respondents.”

See also Embry v. Midland Land Co., 50 Okl. 616, 151 P. 218; First Nat. Bank & Trust Co. in Sioux Falls v. Monserud, 61 S. D. 460, 249 N. W. 813; 8 Am. Jur. 710, paragraph 9, 11 C. J. S., Bonds, p. 402, § 12b.

It is true that we are not definitely apprised on the matter of whether the Undertaking was captioned with the title of the case. It would appear so from the phrase “the above-named defendant Glenn Hanson.” It hardly seems necessary for us to order up the record in the City Court for the purpose of making certain of this point. It should be further noted that both bonds state that:

“Whereas the above named defendant, Glenn Hanson, is desirous of appealing from a judgment in the sum of $168.20,” etc. (Italics added.)

It would be a very remote chance indeed that there would be a judgment of $168.20 against Hanson in the City Court and in favor of some other party than James L. Morris. This aids materially in ascertaining the obligee in an “unmistakable manner.” So much for the matter of ascertaining the obligee.

We next consider the question of whether the bond bound the sureties and if so for what?

The sureties were bound as provided for in 104-41-7, U. C. A. 1943. This section pertains to appeals from the District to the Supreme Court but the language of the section is that “appellant will pay all damages and costs which may be awarded against him on the appeal, or on a dismissal thereof, not exceeding $300.” 104-77-6, U. C. A. 1943, dealing with an Undertaking on appeal from the justice to the district court contains practically the same language requiring the appellant to pay the “costs on the appeal” if the bond is not a supersedeas up to $100. If the signers borrowed the words of 104-41-7 as above set out, those words could be assumed to have been incorporated in the bond. If so, and if it could be ascertained to whom they were bound, it seems that all the requisites of an obligation to a specific party can be spelled out from the instrument. We do not think if the paper had been accepted as an Undertaking and the defendant had lost the trial in the district court, the Melis boys could have defended on the ground that no obligee was named nor on the ground that it could not be ascertained for what or in what manner they had bound themselves. On its face the “Undertaking” appears to be a good bond.

And if the Undertaking of June 5th was not an Undertaking, the Undertaking of July 3rd was good. It purported to bind Gust and Nick Melis for the sum necessary under 104-77-6 to stay execution and protect the respondent for the recovery of his costs “as provided in the Utah Code Annotated, Sec. 104-77-6.”

While the Undertakings are anything but artfully drawn, on their face they serve the purpose for which they show they were intended. The court should not have dismissed the case on the theory that a bond had not been given.

This was error. It is urged that the plaintiff has an adequate remedy by appeal and for that reason mandamus should be denied. Admittedly, an appeal could have been brought, but in view of the circumstance that the record had been erroneously returned to the City Court, we do not think we should be technical. The matter is here. It involves a small amount. It should be settled once for all. The writ to reinstate the suit is made permanent, such proceedings to be had as are in order upon the filing of an Undertaking. Such is the order.

McDONOUGH and WADE, JJ., concur.