Adams v. Thompson

• Decision Date: 06 January 1886
• Citation: 18 Neb. 541,26 N.W. 316
• Parties: ADAMS v. THOMPSON.
• Court: Nebraska Supreme Court

18 Neb. 541

26 N.W. 316

ADAMS

v.THOMPSON.

Supreme Court of Nebraska.

Filed January 6, 1886.

Error from Cass county.

Beeson & Sullivan, for plaintiff.

Curtis & Ramsey, for defendant.

COBB, C. J.

It appears from the record in this case that the defendant in error, Joseph H. Thompson, in a certain action before G. C. CLEGHORN, a justice of the peace of Cass county, recovered a judgment against one William W. Higgs, on the eleventh day of September, 1882, for the sum of $200 and costs; that for the purpose of appealing said judgment to the district court, the plaintiff in error, George W. Adams, executed an appeal-bond in said case in the usual form. This bond bore no date on its face; but was indorsed by the said justice as follows: “Received this bond this 22d day of September, 1882, and approved the same as to form and sufficiency, and not as to time, it being the eleventh day after judgment, and does not operate as stay of execution.” At the following term of the district court the said appeal, having been docketed in said court, was on motion of the said Thompson, appellee, dismissed, and the judgment affirmed, for the reason that the said appeal had not been taken within the time provided by law. Upon the said order of dismissal being certified to said justice of the peace, as required by law, an execution was duly issued against the said Higgs thereon, placed in the hands of a constable for service, and by him returned wholly unsatisfied for the want of goods of the said Higgs whereon to levy the same. Thereupon the said Joseph H. Thompson brought this action in the district court against the said George W. Adams on the said appeal-bond. The said Adams filed his answer in said action, in which he denied that the said William W. Higgs, ever appealed the said action from the said justice, or that he ever caused the said bond to be approved by the said justice, or that the same ever was in fact approved by him, and averred that the said justice refused to approve said bond. Also that the said first action was dismissed out of the said district court on motion of the said plaintiff, for the reason that said bond was not given within the time required by law, etc. The case was tried to the court, which found the issues for the plaintiff, and rendered judgment for him in the sum of $336.97, besides costs. The defendant brings the cause to this court on error.

The question presented by the record is whether a person who voluntarily becomes security for a losing party in an action before a justice of the peace, or other inferior court, for the purpose of enabling such party to appeal to the appellate court, upon the failure of such appeal on account of the same not having been taken within the time limited by law, will be held to the terms of such suretyship notwithstanding such failure...