McClelland Bros. v. Allison

34 Kan. 155

• Court: Supreme Court of Kansas
• Decided: July 15, 1885
• Status: Published

Opinion

The opinion of the court was delivered by

Horton, C. J.:

The question before us for determination is, whether the district court possessed the power, under the circumstances of this case, to permit the filing of an amended appeal bond. Section 121 of civil procedure before justices, reads:

“The party appealing shall, within ten days from rendition of the judgment, enter into an undertaking to the adverse party, with at least one good and sufficient surety, to be approved by such justice, in a sum not less than fifty dollars in any case, nor less than double the amount of the judgment and costs, conditioned: First, That the appellant will prosecute his appeal to effect, and without unnecessary delay. Second, That if judgment be rendered against him on the appeal, he will satisfy such judgment and costs. Such undertaking need not be signed by the appellant.”

Sec. 131 of said procedure provides:

“In proceedings on appeal, when the surety in the undertaking shall be insufficient, or such undertaking may be insufficient in form or amount, it shall be lawful for the court, on motion, to order a change or renewal of such undertaking, and direct that the same be certified to the justice from whose judgment the appeal was taken, or that it be filed in said court.”

■peSbondf may be filed. It is claimed that the bond given is a mere nullity, and therefore furnishes no basis sufficient to authorize an amendment. The surety upon the bond ought not to have been accepted, because he is a member of the firm of McClelland Brothers, and also because he is a practicing attorney residing in Neosho county. Therefore the appeal bond is not such a one in all respects as is required by the statute. Even, however, if the bond be defective, it having been accepted, filed and approved by the proper officer, we think it furnishes sufficient basis to order a change or renewal thereof. The provisions of said §131 should be liberally construed with a view to promote its object and assist parties in obtaining justice. Again, as a rule, appeals are to be favored, and mere technical defects or omissions are to be disregarded. In this case, G. W. McClelland signed the undertaking as surety, and was accepted by the justice as surety; it is true the surety is insufficient, but as the undertaking is otherwise sufficient in form and amount, and is only defective on account of the surety thereto, the district court had the J t 3 power to permit an amended appeal bond to be filed. It is difficult to conceive any just cause which the defendants in error have to complain, if the district court shall accept a sufficient bond. All of the parties have proceeded as though an appeal had been taken from the judgment of the justice of the peace, and pending the motion to dismiss the appeal, plaintiffs in error offered and asked permission to file a sufficient bond. Upon the first occasion that the appeal bond was challenged, the parties thereto offered to rectify it. In furtherance of justice, this ought to have been permitted. An appeal will give all the parties a full and fair trial upon the merits. (Coleman v. Newby, 7 Kas. 83; Mitchell v. Goff, 18 Iowa, 424; Irwin v. Bank, 6 Ohio St. 81; Shelton v. Wade, 4 Tex. 148; Probst v. Probst, 2 Wall. 96; Seymour v. Frees, 5 id. 822.)

In Lovitt.v. Railroad Co., 26 Kas. 297, the bond was not simply defective or irregular, or insufficient in amount, or insufficient in security, but a bond which, running to a party entirely a stranger to the record, was a perfect nullity.

The judgment of the district court will be reversed, and the cause remanded.

All the Justices concurring.