Drainage Dist. No. 5, Oklahoma County v. Ferrell

• Decision Date: 19 March 1912
• Citation: 122 P. 698,32 Okla. 381,1912 OK 252
• Parties: DRAINAGE DIST. NO. 5, OKLAHOMA COUNTY, v. FERRELL.
• Court: Oklahoma Supreme Court

122 P. 698

32 Okla. 381, 1912 OK 252

DRAINAGE DIST. NO. 5, OKLAHOMA COUNTY, v. FERRELL.

Supreme Court of Oklahoma

March 19, 1912

Syllabus by the Court.

In an appeal from an order of the county commissioners to the district court under what is known as the "Drainage Act" (chapter 32, Snyder's Comp. L. 1909,§3057), it is essential to the jurisdiction of the district court that a bond be given in substantial compliance with the provisions of the statute; but where a bond is given, within the time prescribed, in the sum fixed, properly describing the parties, court, and judgment or order appealed from, with the statutory conditions, signed by the appellant, and reciting a deposit of cash in the full sum of the liability, and the cash is so deposited with the bond as part thereof, and the bond is duly accepted and approved by the proper officer, and is lodged, with the original papers and transcript of the proceedings, in the district court, held that although irregular and defective, the bond is not void, and that, upon motion to dismiss the appeal, it is within the discretion of the court to permit the appellant to amend the same, or file a new and correct bond in substitution of the irregular and defective one.

Commissioners' Opinion, Division No. 2. Error from Superior Court, Oklahoma County; A. N. Munden, Judge.

Proceedings by C. E. Ferrell against Drainage District No. 5, Oklahoma County, before the board of county commissioners. From a judgment of the superior court on appeal from the order of the board of county commissioners, the Drainage District brings error. Affirmed.

T. F McMechan and George P. Glaze, both of Oklahoma City, for plaintiff in error.

W. M Engart, of Shawnee, and W. A. Staley, of Oklahoma City, for defendant in error.

BREWER C.

This action was tried in the superior court of Oklahoma county on appeal from an order of the board of county commissioners of Oklahoma county, and was prosecuted under what is known as the "Drainage Act," which went into effect March 23, 1909. Chapter 32, Snyder's Comp. L. 1909.

The cause was tried, commencing on December 15, 1909, by a jury and resulted in a verdict and judgment in favor of defendant in error in the sum of $650. The cause comes here for review on a transcript of the record, and the plaintiff in error assigns the following errors: First. The court erred in overruling the motion of plaintiff in error to dismiss the appeal. Second. The court committed error in granting leave to defendant in error to file a new appeal bond. Third. The court committed error in overruling the objection to introduction of evidence. Fourth. The court erred in overruling the motion to dismiss the appeal, made at the commencement of the trial of the cause. These assignments of error, in fact, raise one question, i. e., the jurisdiction of the court to hear the appeal. And the challenge of the court's jurisdiction is predicated solely on the alleged failure of the defendant in error (appellant below) to file the bond required by statute in appealing from the order of the county commissioners.

Section 3057, Snyder's Comp. L. 1909, after designating how an appeal may be taken from an order of the county commissioners, and providing how the amount of the appeal bond shall be fixed, says: "And the appellant shall, within ten days thereafter, file with the county clerk a bond payable to the state of Oklahoma, in an amount not less than that previously fixed, with at least two good and sufficient freehold sureties, conditioned to pay all costs of the appeal if the appeal be denied or dismissed. If the clerk approve the bond, he shall thereupon make and certify a transcript of the proceedings had before the commissioners relating to all matters involved in the appeal, and transmit the same, together with all original papers in the cause, on file in his office, to the clerk of the district court within thirty days from the date of the approval of said bonds."

The defendant in error, in taking his appeal from the order of the county commissioners, filed a bond in the correct amount of $100, and in the usual form and with the statutory condition, except that it recited that: "C. E. Ferrell, as principal, and one hundred dollars in cash, as surety, are bound." It was signed by Ferrell alone. Indorsed at the bottom of the bond is the following: "One hundred dollars in cash deposited with clerk for bond." Then follows the formal approval of the bond by the clerk, and the clerk's signature and indorsement of filing.

The clerk of the county court certified a transcript of the commissioners' proceedings and order, together with a copy of the appeal bond, and lodged the same, with the $100 cash, in the superior court. The question of jurisdiction was raised in the superior court by a motion to dismiss the appeal.

Upon filing the motion to dismiss the appeal, defendant in error asked and was allowed, over objections of plaintiff in error, to file a new bond with two sureties, as provided by statute. The only attack made on the form of this new bond is that the language of the bond does not in terms describe the sureties as "freehold sureties."

Counsel cite Vowell v. Taylor et al., 8 Okl. 625, 58 P. 944, Brickner v. Sporleder, 3 Okl. 561, 41 Pac.

726, and Beckwith v. Kansas City & O. R. Co., 28 Kan. 485, to sustain their contentions in this case. The first two of these cases involved the question of appeal from a justice of the peace court. In the Vowell Case, supra, no bond of any character was executed, shown on the transcript, or lodged in the district court with the papers. This case is not in point. The case of Beckwith v. Kansas City & O. R. Co., supra, cited by counsel, is not in point, for the reason that there was no bond of any kind filed upon which to base the appeal; and, there being no bond of any kind, regular or irregular, the court properly held that the appellate court acquired no jurisdiction. The Brickner Case, supra, was decided under the Statutes of 1890, which have been changed since, and in which the phraseology is very different from that of the statute involved in this case at bar, but, as an analogous proposition, supports counsel's contention. But, inasmuch as this is not an appeal from a justice of the peace court, but is taken under an entirely different statute, the conditions and purposes of the bond being entirely different, that decision is not controlling in this case.

It may be admitted that the filing of a bond is a prerequisite in cases of this kind. But must the undertaking conform in every possible way with the requirements of the statute? Or is the filing of a bond in substantial compliance with the statute duly approved by the proper officer, sufficient upon which to found jurisdiction in the district court? In Hass v. Lees, 18 Kan. 454, it is said: "Appeals are favored, and mere technical defects or omissions are to be disregarded, as far as possible, without obstructing the course of justice." Is there not a difference between a purported bond that, because of its inherent vices,...