Burgess v. Ward

• Decision Date: 11 September 1934
• Docket Number: Case Number: 22276
• Citation: 169 Okla. 13,35 P.2d 880,1934 OK 402
• Parties: BURGESS et al. v. WARD et al.
• Court: Oklahoma Supreme Court

1934 OK 402

35 P.2d 880

169 Okla. 13

BURGESS et al. v. WARD et al.

Case Number: 22276

Supreme Court of Oklahoma

Decided: September 11, 1934

Syllabus

¶0 1. Justices of the Peace--Appeal Bond--Obligation to "Prosecute Appeal to Effect" not Excused by Death of Appellant or Failure to Revive Cause.

In an action appealed from a justice of the peace court neither the death of the appellant pending trial of the cause in the appellate court nor failure to revive the cause in the appellate tribunal excuses performance by the sureties of a condition in the appeal bond obligating the parties thereto to prosecute said appeal to effect.

2. Same--Failure to Revive Action Held Failure to 'Prosecute Appeal to Effect."

In cases appealed from the justice court a trial de novo is contemplated. The failure to revive such an action pending in the appellate court on appeal when one of the parties thereto has died, constitutes a failure to prosecute the appeal to effect within the meaning of the provisions of a bond executed pursuant to section 1019, O. S. 1931.

3. Same--Dismissal of Appeal Proper Where Action not Revived Within Year After Death of Party.

When a case is pending on appeal from a justice of the peace court at the time that one of the parties thereto dies and more than one year elapses subsequent to the death of such party without revival of the action, the appellate court may properly enter its order dismissing the appeal.

4. Same--Liability on Appeal Bond Where Appeal Dismissed.

By virtue of the provisions of section 1031, O. S. 1931, the sureties on a justice of the peace court appeal bond are liable for the payment of the judgment rendered in the justice court, if the appeal is dismissed in the appellate court, unless such order of dismissal be on the ground that no appeal was or could have been perfected.

Appeal from Court of Common Pleas, Tulsa County; Wm. N. Randolph, Judge.

Action by Cora B. Ward and another against W. A. Burgess and another to recover money judgment on justice court appeal bond. Judgment for plaintiffs, and defendants appeal. Affirmed.

J. J. Henderson, for plaintiffs in error.

E. G. Wilson, for defendants in error.

BUSBY, J.

¶1 This action was commenced in May of 1929 in a justice of the peace court in Tulsa county by Cora B. Ward and George A. Ward, as plaintiffs, against Wm. A. Burgess and W. D. Stinnett, as defendants, to recover the principal sum of $ 130, with accrued interest, alleged to be due plaintiffs by reason of the asserted breach of the conditions, of an appeal bond previously executed by the defendants as sureties in order to perfect an appeal from a justice of the peace court in another action. A change of venue was taken and the cause was tried before another justice of the peace, resulting in a judgment in favor of the plaintiffs. The defendants appealed to the court of common pleas of Tulsa county, where the case was tried de novo and the plaintiffs were again victorious.

¶2 The defendants bring the case to this court on appeal, appearing as plaintiffs in error. For convenience the parties will be referred to as they appeared in the trial court.

¶3 A determination of the questions involved in this case requires an examination and review of the proceedings in the action in connection with which the appeal bond, upon which this action is based, was executed.

¶4 On May 17, 1926, the plaintiffs in this action commenced an action in replevin in a justice of the peace court in Tulsa county against one Elmer Archer. The trial of that case in the justice court resulted In an alternative judgment for the return of certain described personal property, or in lieu thereof its value in the sum of $ 130. In order to perfect an appeal to the district court the defendant in the action, Elmer Archer, as principal, and Wm. A. Burgess and W. D. Stinnett, as sureties, executed the appeal bond involved herein.

¶5 While the case was pending in the court of common pleas, Elmer Archer died on December 24, 1927. By reason of his death it was necessary that the action be revived (sec. 581, O. S. 1931). This could not be done after the expiration of one year without the consent of the representatives or successors of the defendant (sec. 583, O. S. 1931). The action was not revived without consent within the time allowed, nor thereafter by consent of the successors or representatives.

¶6 There being no revivor, the appeal was dismissed on April 27, 1929, on motion of the plaintiffs. The plaintiffs having failed to obtain possession of the property involved in the replevin action, brought this action to recover from the sureties on the appeal bond the amount of the alternative money judgment previously rendered in the justice court.

¶7 The appeal bond involved herein was conditioned as required by section 1019, O. S. 1931, "that the defendant should prosecute his appeal to effect, and without unnecessary delay and satisfy such judgment and costs as may be rendered against him thereon."

¶8 Being a statutory bond, the provisions of the statute prescribing the obligations created thereby may be considered in determining the liability thereon. Section 1031, O. S. 1931, provides:

"When any appeal shall be dismissed, or when judgment shall be entered in the appellate court against the appellant, the surety in the undertaking shall be liable to the appellee for the whole amount of the debt, costs and damages recovered against the appellant."

¶9 Thus a proper order of dismissal in a case pending on appeal in the district court renders the sureties on an appeal bond liable for the judgment previously rendered in the justice court (Witter et al. v. Jackson-Warner Co., 51 Okla. 538, 152 P. 129), unless the dismissal be on the grounds that no appeal was or could have been perfected (Spaulding Mfg. Co. v., Witter, 52 Okla. 362, 152 P. 1079; Potts v. Graham, 137 Okla. 302, 277 P. 594).

¶10 The statutes regulating appeals from justice court judgments contemplate that the rights of the parties shall be determined by a trial de novo in the appellate tribunal (sec. 1022, O. S. 1981). In the case at bar the ultimate rights of the parties were not so determined. Since no judgment was standing against the principal on the bond in the appellate court, no liability can be said to have accrued against the sureties by virtue of that provision of the bond obligating them to pay such judgment as may be rendered against the principal on appeal. That particular provision of the bond will therefore be disregarded in the subsequent portions of this opinion.

¶11 The liability of the defendants as sureties on the appeal bond, if any, arises by virtue of the conditions of the bond that the appeal shall be prosecuted to effect or by reason of the statute (section 1031, O. S. 1931, supra), rendering them liable in the event of a dismissal of the appeal.

¶12 It is urged by the defendants that no revivor of the judgment in the justice court having been had, that judgment was dormant and dead; that it could not be enforced against the successors or representatives of the deceased judgment debtor, and...