Union Central Life Insurance v. Lindermann

210 N.W. 156, 50 S.D. 331, 1926 S.D. LEXIS 375

• Court: South Dakota Supreme Court
• Decided: September 30, 1926
• Docket: File No. 6222
• Status: Published

Opinion

GATES, P. J .

In this case appellant served and filed with his notice of appeal an undertaking in the sum1 of $250, conditioned only for the payment of costs on the appeal and not for the payment of damages that might be awarded1 against him on the appeal. Section 3150, Rev. Code 1919, provides that the undertaking must be to the effect that appellant will pay all costs and ’damages which may be awarded against him on the appeal not exceeding $250. The undertaking designates the state of South Dakota as the obligee instead of respondent. For these reasons respondent moves to dismiss the appeal. Upon the return day appellant says he cannot find the record and does not know whether-the facts are as above stated, but, if they are, he says it was due to error and inadvertence on the part of his attorneys, and asks that he be permitted to amend the undertaking to make it conform to the requirements of said section 3150.

Assuming, without deciding, that upon a proper application such relief might be granted, yet it cannot be allowed upon this showing. The surety or sureties on the undertaking have not joined in the request to amend, and this court is powerless to allow an amendment to the undertaking without the surety’s consent.

The appeal was ineffectual for any purpose. Section 3150, supra.

The appeal is dismissed.

DILLON, J., not sitting.