Huner v. Reeves

Supreme Court of Iowa

Huner v. Reeves

2 Greene 190

DecidedMay 15, 1849

StatusPublished

This text of 2 Greene 190 (Huner v. Reeves) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Huner v. Reeves, 2 Greene 190 (iowa 1849).

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Opinion

Opinion Toy

Kimmet, J.

A motion is made in this case by tbe attorney for tbe defendant in error, to dismiss the tbe writ of error, for tbe reason that a bond was not given by Huner to bis co-party Bullard, as required by tbe statute, when co-plaintiffs do not join in tbe writ. Tbe statute provides : “ That any one of two or more persons entitled to a writ of error, may sue out a writ of error as of course, in tbe name of tbe plaintiff in error. Provided such plaintiff in error shall have first filed a bond with tbe clerk of tbe district court, where tbe judgment or decree was rendered in such sum as the clerk shall require, with sufficient sureties to indemnify bis co-plaintiff, against all damages'and costs, on account of suing out such writ of error.” Laws of 1815, p. 26, § 2.

Huner and Bullard were tbe defendants below. Huner alone feels aggrieved by tbe judgment, and sues out tbe writ in bis own name. This be could not do, without joining bis co-plaintiff, and if be bad refused to join, be could still use bis name in tbe writ of error, by giving him a bond to indemnify him against damages and costs in compliance with tbe statute.

Giving a bond to co-plaintiffs when they do not join in the writ of error, is made by tbe statute a condition precedent to the suing out of .the writ, an imperative requirement which cannot be dispensed with. Tbe laws prescribing tbe manner of suing out a writ of error by one party, where there are other parties who do not join in tbe writ, is inflexible, and unless pursued, or there is evidence of a waiver of tbe bond, this court will not take ju[191]*191risdiction of the cause, and will on motion, dismiss tbe writ.

J. ■ C. Hall, for plaintiff in error. L. R. Reeves, for defendant.

As tbe writ was sued out in tbis case by Tluner, without baying first given tbe bond and joining Bullard, it must be dismissed. Tbe bond being a condition precedent, we cannot now permit tbe plaintiff to file one, nunc pro timo.

Motion granted.

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Opinion Toy

Kimmet, J.

A motion is made in this case by tbe attorney for tbe defendant in error, to dismiss the tbe writ of error, for tbe reason that a bond was not given by Huner to bis co-party Bullard, as required by tbe statute, when co-plaintiffs do not join in tbe writ. Tbe statute provides : “ That any one of two or more persons entitled to a writ of error, may sue out a writ of error as of course, in tbe name of tbe plaintiff in error. Provided such plaintiff in error shall have first filed a bond with tbe clerk of tbe district court, where tbe judgment or decree was rendered in such sum as the clerk shall require, with sufficient sureties to indemnify bis co-plaintiff, against all damages'and costs, on account of suing out such writ of error.” Laws of 1815, p. 26, § 2.

Huner and Bullard were tbe defendants below. Huner alone feels aggrieved by tbe judgment, and sues out tbe writ in bis own name. This be could not do, without joining bis co-plaintiff, and if be bad refused to join, be could still use bis name in tbe writ of error, by giving him a bond to indemnify him against damages and costs in compliance with tbe statute.

Giving a bond to co-plaintiffs when they do not join in the writ of error, is made by tbe statute a condition precedent to the suing out of .the writ, an imperative requirement which cannot be dispensed with. Tbe laws prescribing tbe manner of suing out a writ of error by one party, where there are other parties who do not join in tbe writ, is inflexible, and unless pursued, or there is evidence of a waiver of tbe bond, this court will not take ju[191]*191risdiction of the cause, and will on motion, dismiss tbe writ.

J. ■ C. Hall, for plaintiff in error. L. R. Reeves, for defendant.

As tbe writ was sued out in tbis case by Tluner, without baying first given tbe bond and joining Bullard, it must be dismissed. Tbe bond being a condition precedent, we cannot now permit tbe plaintiff to file one, nunc pro timo.

Motion granted.

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2 Greene 190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/huner-v-reeves-iowa-1849.