Paxton v. Lively

85 P. 501, 48 Or. 135, 1906 Ore. LEXIS 65

Opinion

Mr. Justice Hailey

delivered the opinion of the court.

The sole question raised by this motion is whether or not a United States commissioner is qualified to act as surety >on an undertaking, on appeal under our law. Subdivision 3 of 549, B. & C. Comp., provides:

“The qualifications of sureties in the undertaking .on appeal shall be the same as in bail on arrest, and, if excepted to, they shall justify in like manner.”

Section 1507, B. & C. Comp., defining the qualifications of bail on arrest, provides:

“No counselor or attorney, sheriff, clerk of any court, or other officer of any court, is qualified to be bail.”'

In Todd v. United States, 158 U. S. 278-282 (15 Sup. Ct. 889, 39 L. Ed. 982), Mr. Justice Brewer, in speaking of a commissioner of the United States Circuit Court, said: “He is simply an officer of the circuit court, appointed and removable by that court.” Congress in 1896 abolished all commissioners of circuit courts and provided that the United States District Courts for each judicial district should appoint United States commissioners, who “shall have the same powers and perform the same duties as are now imposed upon commissioners of the circuit courts”: Act May 28, 1896, c. 252, § 19, 99 Stat. U. S. 184 (U. S. Comp. Stat. 1901, p. 499, 4 Fed. Stat. Ann. 61, 79). The surety in: the undertaking on appeal herein, being a United States commissioner, was an officer of a court, and therefore not qualified as surety.

The motion will be allowed, and the appeal dismissed.

Dismissed.