McClelland v. Allison

• Decision Date: 09 October 1885
• Citation: 8 P. 239,34 Kan. 155
• Parties: MCCLELLAND BROTHERS v. ALEXANDER ALLISON
• Court: Kansas Supreme Court

8 P. 239

34 Kan. 155

MCCLELLAND BROTHERS v. ALEXANDER ALLISON

Supreme Court of Kansas

October 9, 1885

Error from Neosho District Court.

ON March 31, 1884, Alexander Allison filed with a justice of the peace of Neosho county his bill of particulars, and therein demanded judgment against G. W. McClelland and D. E McClelland, partners as McClelland Brothers, for $ 285, with interest from March 15, 1884. Judgment was rendered in the action before the justice in favor of Allison against the McClelland Brothers on May 5, 1884, for $ 288 debt, and $ 12.50 costs. On May 14, 1884, G. W. McClelland, of the firm of McClelland Brothers, went before the justice and executed the following bond, (court and title omitted:)

"Whereas the defendants, McClelland Bros., intend to appeal from a judgment rendered against them in favor of the plaintiff for $ 288, judgment, and $ 12.50 costs, on the 5th day of May 1884, by the undersigned justice of the peace of Tioga township in said county; now we, the undersigned, residents of said county, bind ourselves to said plaintiff in the sum of six hundred dollars that said defendants shall prosecute their appeal to effect and without unnecessary delay, and satisfy such judgment and costs as may be rendered against them therein. MCCLELLAND BROS.

G. W MCCLELLAND."

This was approved on May 14, 1884, by George W. Ashby, the justice of the peace. Afterward the case was docketed in the district court of Neosho county, and came regularly on for trial at the July Term, 1884, when Allison appeared specially by his attorney, for the purpose of presenting a motion to dismiss the appeal. The grounds of his motion were, first, that no appeal bond had been given in the action, as required by law second, that the pretended appeal bond given by the defendants was not signed by any surety--the pretended surety thereto being one of the defendants; third, that the pretended surety to the appeal bond, G. W. McClelland, was at the time of the signing of the bond, and still is, a practicing attorney at law, residing in Neosho county. Upon the hearing of the motion it was admitted that G. W. McClelland, who signed the appeal bond, was one of the defendants and a practicing attorney at law in said county. Pending the hearing of the motion, the defendants requested the court to be permitted to execute a new or amended appeal bond with a good and sufficient surety, which request the court overruled upon the ground that it had no power or discretion to permit another bond to be given. The court thereupon sustained the motion and dismissed the appeal at the costs of the defendants, amounting to $ 29.90. The defendants excepted, and bring the case here.

Judgment reversed and cause remanded.

C. F. Hutchings, for plaintiffs in error.

Amos S. Lapham, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

The question before us for determination is, whether the district court possessed the power, under the circumstances of this case, to permit the filing of an amended appeal bond. Section 121 of civil procedure before justices, reads:

"The party appealing shall, within ten days from rendition of the judgment, enter into an undertaking to the adverse party, with at least one good and sufficient surety, to be approved by such justice, in a sum not less than fifty dollars in any case, nor less than double the amount of the judgment and costs, conditioned: First, That the appellant will prosecute his appeal to effect, and without unnecessary delay. Second, That if judgment be rendered against him on the appeal, he will satisfy such judgment and costs. Such undertaking need not be signed by the appellant."

Sec. 131 of said procedure provides:

"In proceedings on...