Johnson v. Glaspey

• Decision Date: 26 October 1907
• Citation: 113 N.W. 602,16 N.D. 335
• Parties: JOHNSON et al. v. GLASPEY et al.
• Court: North Dakota Supreme Court

16 N.D. 335

113 N.W. 602

JOHNSON et al.

v.GLASPEY et al.

Supreme Court of North Dakota.

Sept. 4, 1907.

Rehearing Denied Oct. 26, 1907.

Syllabus by the Court.

The defendants appealed from a judgment of a justice of the peace to the district court, and furnished only an undertaking in conformity with section 8503, Rev. Codes 1905, relating to appeals from justice's court. Held, that the words “all costs” contained in the undertaking in accordance with the requirements of section 8503 are sufficiently comprehensive to cover costs on appeal, and that the district court acquired jurisdiction without filing the bond mentioned in section 8502, Rev. Codes, 1905.

In an action in claim and delivery in which the issues were as to the right of possession. damages, and the right to and the amount of the lien claimed on the property in suit, the jury returned a verdict as follows: “We, the jury in said action, do hereby find for the defendant in the sum of $12.00.” Held, that this verdict was not responsive to the issues, and was not in law a verdict.

Under the provisions of section 8428, Rev. Codes 1905, which is to the effect that, if the jurors are discharged without rendering a verdict, “* * * the court shall proceed again to trial as in the first instance, until a verdict is rendered,” where the jury returned what was in form a verdict, but which failed to find on all the material issues, the justice was warranted in holding that it was not a lawful verdict, and in setting the case for retrial.

The word “verdict” is not an abstract designation of the finding of a jury after a case is submitted to it, but relates to the issues raised by the pleadings and evidence, and what may in form be a verdict is not such in law unless it substantially responds to all the issues.

Appeal from District Court, Ward County; E. B. Goss, Judge.

Action by Nels Johnson and Syver Johnson against Richard Glaspey and William Rennie. Judgment for defendants, and plaintiffs appeal. Reversed.

Geo. H. Gjertsen, for appellants. H. W. Braatelien, for respondents.

SPALDING, J.

This is an action in claim and delivery, and the first question presented for consideration is whether an undertaking on appeal from justice court to district court drawn in accordance with the requirements of section 8503, Rev. Codes 1905, is sufficient to give the district court jurisdiction without containing any provisions in the express language of section 8502, Rev. Codes 1905. The judgment of the justice court was for the plaintiffs, and, in the alternative, holding them to be the owners and entitled to the possession or the value of the property in question, and awarding them damages for detention and costs. Defendants appealed to the district court on questions of law alone, and furnished an undertaking in the following language: “Whereas, on the 31st day of October, 1905, before David Landis, Esq., justice of the peace in and for the county of Ward, and state of North Dakota, the above-named respondents recovered a judgment in an action pending in said court against the above-named appellants for the immediate return and possession of specific personal property, and for damages and detention and costs taxed at sixty-two dollars or the sum of one-hundred seventy-five and no/100 dollars if possession cannot be had and for the sum of twenty and no/100 dollars and costs taxed at $62.00 making a total judgment of $257.00 and the above-named appellants feeling aggrieved thereby, intend to appeal therefrom to the district court of said county: Now, therefore, we, Glaspey and Rennie, copartners, and appellants, principal, and H. V. Hollingsworth and William Glaspey, sureties, of the county of Ward and state of North Dakota, do hereby undertake, promise, and agree if the appeal is dismissed or if judgment is rendered against the appellants * * * in the sum of five hundred twenty-five and no/100 dollars, that appellants in the appellate court will deliver the property above referred to and pay all damages for the taking or detention thereof and all costs, or pay the sum fixed by the judgment as the value of the property together with the damages awarded for the taking or detention thereof and all costs not to exceed the sum above mentioned. Dated November 9th, 1905.” The plaintiff submitted a motion to dismiss the appeal for lack of the undertaking required by section 8502, Rev. Codes 1905, and the district court overruled this motion, and defendants had judgment.

Sections 8502 and 8503 read as follows: Section 8502: “To render any appeal effectual for any purpose an undertaking must be executed on the part of the appellant by sufficient surety to the effect that the appellant will pay all costs which may be awarded against him on the appeal, not exceeding $100.00.” Section 8503: “If the appellant desires a stay of execution an undertaking must be executed on his part by sufficient surety to the effect, that if the appeal is dismissed, the appellant will pay the amount of the judgment appealed from and all costs or if judgment is rendered against him in the appellate court, that he will pay the amount of such judgment and all costs not exceeding a sum specified in the undertaking, which must be at least one hundred dollars and not less than twice the amount of the judgment appealed from; or, if the judgment appealed from is for the recovery of specific personal property an undertaking must be executed on the part of the appellant by sufficient surety to the effect that if the appeal is dismissed or if judgment is rendered against the appellant in the appellate court, the appellant will deliver the property described in the judgment and pay the damages awarded for the taking and detention thereof and all costs or pay the sum fixed by the judgment as the value of the property together with the damages awarded for the taking or detention thereof and all costs. Such undertaking shall be approved and filed as provided in last section.” It is contended that the undertaking furnished was inadequate to cover costs on appeal, and that, in addition to this undertaking, another undertaking should have been given for that purpose. This is purely a question of construction, and must be determined by considering whether the language of the undertaking in the action was broad enough to cover the costs on appeal. It will be observed that the undertaking was for more than $100, and, as to costs, it provides for the payment of all costs not to exceed $525. After careful consideration, we have arrived at the conclusion that the term “all costs,” in the connection in which it is used in the...