State ex rel. Rickgauer v. Kloke

110 N.W. 687, 78 Neb. 133, 1907 Neb. LEXIS 105

Opinion

Duffie, C.

The relator asks a writ of mandamus directed to the respondent, John Kloke, a justice of the peace for Boyd county, commanding him to approve a certain appeal bond tendered by the defendant in a case tried before him. It conclusively appears from the record before us that the appeal undertaking was presented within the time required by statute, and that the only objection made to . the bond by the respondent was that the surety thereon did not sign the same in his presence. In State v. Clark, 24 Neb. 318, it was held that the sureties on an appeal bond need not sign the same in the presence of the justice. If the justice requires proof of the genuineness of the signatures or of the sufficiency of the surety, he should make it known when the bond is received by him or soon thereafter. Otherwise the objection will be waived. This case was referred to with approval in McKinley & Lanning v. Chapman, 37 Neb. 378, and Deere, Wells & Co. v. Hodges, 59 Neb. 288, and'is the rule now well established in this state. There being no objection to the bond other than that the surety did not sign in the presence of the justice, tbe relator is entitled to have the same approved, and we recommend that an order be entered directing the writ to issue.

Albert and Jackson, CC., concur.

By the Court: For the réasons stated in the foregoing-opinion, an order is entered directing the writ .to issue.

Writ allowed..