¶0 1. Appeal and Error - Validity of Appeal Bond Given Without Statutory Requirements.
When a bond is given without statutory requirements, but voluntarily, and contains conditions supported by valuable consideration for a purpose not prohibited by statute nor contrary to public policy, it is therefore obligatory on the parties to it in like manner as any other contract or agreement is held valid at common law.
2. Same - Nature of Bond - Construction.
A bond is nothing but a contract. It is the written evidence of the meeting of the minds of the parties to it, and subject to the rules favoring sureties, it must be construed by the established canons for the interpretation of contracts, and where there is no statute providing for the giving of the bond, it is enforceable as a voluntary agreement, since it is supported by an independent and valuable consideration not dependent upon statutory requirements.
Appeal from County Court, Pottawatomie County; W.M. Haight, Judge.
Action by H.L. Cone against A.C. Rippey et al. Judgment for plaintiff, and defendants bring error. Affirmed.
PER CURIAM.
¶1 This an action on appeal from the county court of Pottawatomie county from a judgment in a suit upon an appeal bond from the justice of the peace court. The matter was submitted to the court without a jury upon an agreed statement of facts by the parties, as follows, to wit:
"On the 17th day of Sept., 1930, plaintiff herein obtained judgment in the court of Virgil Martin, Justice of the peace of the city of Maud, Pottawatomie county, Okla., against E.C. Rippey and A.C. Rippey in the sum of $196.61 and costs of suit; that said judgment was not appealed and the same is valid and in full force and effect. That on the 22nd day of Sept., 1930, an execution was issued out of said justice court aforesaid and levied upon one 1928 model Buick coupe as the property of the defendant A.C. Rippey; that Mrs. A.C. Rippey, defendant herein, claimed the automobile as her property; thereupon a trial was before the said Virgil Martin to try her right to said property and the issue was decided in favor of the plaintiff herein. Said trial and decision was on the 27th day of Sept., 1930. On the same day Mrs. A.C. Rippey attempted to appeal to the county court of Pottawatomie county, and filed with said justice of the peace the appeal bond in the amount of $405 sued on in said action; that said bond was signed by Mrs. and Mr. A.C. Rippey and J.J. Cuff and H.N. Disch as sureties and were approved as such sureties Sept. 27, 1930, and was in due time by said justice of the peace, together with his transcript and the papers in said case, transmitted to and filed in the county court. On the 16th day of Feb., 1931, on motion of the plaintiff herein said appeal was dismissed by the county court of Pottawatomie county for the reason that no appeal would lie from such judgment. After the filing of this appeal the constable making the levy returned said automobile to Mrs. A.C. Rippey. After the dismissal of the appeal the case was remanded to the justice court of the city of Maud aforesaid."
¶2 The plaintiff thereupon offered in evidence, as his exhibit "A," a certified copy of the alleged appeal bond sued on herein, and upon this evidence and said statement of facts, the matter was submitted to the court and judgment rendered thereon in favor of the plaintiff below in the sum of $196.61 from which judgment the plaintiffs in error have appealed.
¶3 Omitting the caption and the signatures, the said bond is in words and figures as follows:
"Know all men by these presents: That Mrs. A.C. Rippey, interpleader, and A.C. Rippey, as principals, and J.J. Cuff and H.N. Disch, as sureties, are held and firmly bound unto H.L. Cone in the sum of $405 Dollars, for the payment of which well and truly to be made we bind ourselves, our heirs, executors and administrators firmly by these presents.
"The condition of the above obligation is such, that whereas, the said Mrs. A.C. Rippey, interpleader, intends to appeal to the county court within and for said county from a judgment rendered against her in favor of H.L. Cone in the justice court of the said county of Pottawatomie on the 27th day of Sept., 1930, before Virgil Martin, justice of the peace for Maud city justice district of said county; now, therefore, if the said Mrs. A.C. Rippey, appellant, shall pay the amount of $196.61 and cost of said appeal be withdrawn or dismissed, including all costs that said appellant will prosecute the appeal to effect and without unnecessary delay; and second, that if judgment be rendered against her on the appeal, she will satisfy such judgment and all costs which may be adjudged against her, or in case the same cannot be collected from the appellee if judgment be obtained against him, then appellant will pay costs incurred by him in said action in the county court, then this obligation to be void, otherwise to remain in full force."
¶4 Said bond was duly dated, signed and acknowledged on the 27th day of September, 1930.
¶5 Plaintiffs in error present their case on two propositions:
First. No appeal lies from the judgment of a justice of peace in a summary hearing to try the rights of property between an intervening third party and an execution creditor.
Second. In any attempted appeal from a judgment of a justice of peace, from which no appeal lies under the law, the appeal bond given in such case is null and void and there is no liability thereon.
¶6 The first proposition is conceded by defendant in error. The second proposition is controverted by defendant in error.
¶7 We think the case of Gillespie et al. v. Frisbie, 46 Okla. 438, 148 P. 991, is applicable to the case at bar. That was a case upon an appeal bond given in a forcible detainer suit, when there was no statute authorizing the bond given at the time of the litigation. The court in ...
