McDonald v. Paris

• Decision Date: 28 October 1896
• Citation: 68 N.W. 737,9 S.D. 310
• Parties: McDONALD v. PARIS.
• Court: South Dakota Supreme Court

68 N.W. 737

9 S.D. 310

McDONALD v. PARIS.

Supreme Court of South Dakota

October 28, 1896

Appeal from circuit court, McCook county; Joseph W. Jones, Judge.

Action by John McDonald against Zimri Paris, brought in justice's court, and from a judgment for plaintiff the defendant appealed to the circuit court. From an order dismissing the appeal, the defendant appeals. Affirmed.

M. A Butterfield, for appellant. E. H. Wilson, for respondent.

CORSON P. J.

This is an appeal from a judgment of the circuit court dismissing an appeal taken from the judgment rendered in the justice's court. The judgment was rendered in the justice's court on July 2, 1894. On August 1st notice of appeal and undertaking on appeal were filed with the justice, and one dollar paid for transcript. No question is made as to the due service of the notice of appeal. On August 3d the plaintiff served notice that he excepted to the sufficiency of the sureties in the undertaking given on the appeal in the action, and demanded that said sureties or others justify as required by law. The affidavit of service of this notice is as follows:

"State of South Dakota, County of McCook--ss.: I hereby certify and return that the within notice came to my hands on the 2d day of July, 1894, and I served the same upon the within-named defendant, Z. Paris, by delivering to and leaving with him personally a true copy of the same, at Bridge-water, McCook county, S. D., on the 3d day of August 1894. Jacob Tschetter.

Subscribed and sworn to before me, this 6th day of August 1894. W. A. Morse, J. P."

We copy this affidavit in full, as it will be noticed that the deponent states that the notice came into his hands on July 2d, and the appellant makes a point upon this fact, in the case. On August 8th a new undertaking was executed by one of the old sureties and one new one. The two sureties executing the new undertaking justified before the justice, but neither the plaintiff nor his attorney was present. On this new undertaking appears the following indorsement by the justice: "It appearing that no notice of the time and place when and where the sureties of defendant would appear to justify, the written bond and justification, hereto attached, are held to be irregular and are not approved. Dated August 8th, 1894. W. A. Morse, Justice of the Peace."

In December, 1894, the plaintiff made a motion in the circuit court to dismiss the appeal upon the ground that the sureties on the undertaking, not having justified upon the notice to the plaintiff as provided by section 6133, Comp. Laws, there was no undertaking on appeal, and no appeal perfected. Defendant thereupon moved the court for leave to file a new undertaking. The court denied the latter motion, and granted the former, and dismissed the appeal. The section before referred to provides that the "adverse party may except to the sufficiency of the sureties within five days after the filing of the undertaking and unless they or other sureties justify within five days thereafter, upon notice to the adverse party, *** the appeal must be regarded as if no such undertaking had been given." It will be observed that notice of such justification is an essential prerequisite to the justification. The evident object of this provision is to enable the adverse party to be present and examine the sureties, in order to ascertain their pecuniary responsibility. It is not enough, therefore, that they are willing to make the ordinary affidavit as to their property. This they do in the first instance. Barber v. Johnson, 4 S. D. 528, 57 N.W. 225. The adverse party has the right to be present when the sureties justify and cross-examine them. The right given to the party is an important one, and no justification in the absence of such notice can be upheld unless there has been an express waiver of the notice by the adverse party. In Rudolph v. Herman, 2 S. D. 399, 50 N.W. 833, this court held that, unless an undertaking is filed as required by the statute, the appeal is not effectual for any purpose, and the appellate court acquires no jurisdiction of the appeal; and by section 6133 it is declared that a failure to justify on notice where the sufficiency of the sureties is excepted to, "the appeal must be regarded as if no such undertaking had been given." It necessarily follows that, after 10 days, within which the exception and notice of justification could be given, there was no undertaking in the case. In contemplation of the law the undertaking filed had ceased to exist, and there was in legal effect no undertaking on appeal, and the circuit court had no jurisdiction of the appeal at the time the motion was made to dismiss the same. McCracken v. Superior Court, 86 Cal. 74, 24 P. 845.

The court therefore committed no error in dismissing the appeal unless the court erred in denying defendant's motion for leave to file a new...