State v. Kidder

• Decision Date: 30 October 1959
• Docket Number: No. 34643,34643
• Parties: STATE of Nebraska and Arnold Wright, Appellees, v. Milton C. KIDDER, Appellant.
• Court: Nebraska Supreme Court

Page 800

98 N.W.2d 800

169 Neb. 181

STATE of Nebraska and Arnold Wright, Appellees, v. Milton C. KIDDER, Appellant.

No. 34643.

Supreme Court of Nebraska.

Oct. 30, 1959.

Syllabus by the Court.

1. Where a person is appointed by the proper authority as acting county judge and thereafter performs duties of the office and holds himself out to the public as such officer, but has failed to give the required statutory bond or take the required statutory oath of office, such person is a county judge de facto.

2. The acts of a de facto officer are as valid and binding as though performed by an officer whose title to the office is beyond dispute.

3. A defective appeal bond which has been approved by the court rendering the judgment confers jurisdiction on the appellate court to have the defect corrected, and the appellate court is required to permit an amendment of the bond or to order the filing of a new bond in the furtherance of justice.

4. When a statute requires two sureties upon a bond for an appeal, and a bond containing but one surety is duly approved by the judge who rendered the judgment appealed from, the bond is not void and may be amended.

5. When an application is made to amend the appeal bond on file or to provide a new one, the proper practice is to order the amendment of the bond or the filing of a new one within a reasonable time designated by the court, and in default thereof to direct the dismissal of the appeal.

Milton C. Kidder, pro se.

Clarence S. Beck, Atty. Gen., Richard H. Williams, Asst. Atty. Gen., for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

CARTER, Justice.

This is an action by the appellees to recover the possession of certain described school lands from the appellant. The action was commenced in the county court of Cherry County and from an adverse judgment the appellant appealed to the district court. From an order of the district court quashing the appeal the appellant has appealed to this court.

On May 26, 1958, the county court of Cherry County entered its judgment in favor of the appellees and against the appellant. On June 2, 1958, the appellant gave notice of appeal to the district court, filed an appeal bond, and ordered a transcript of the proceedings in the county court. The transcript was duly filed in the office of the clerk of the district court on July 17, 1958. On July 28, 1958, appellees filed a motion to quash the appeal. On October 20, 1958, the motion to quash was sustained on the grounds that the appeal bond was defective in that it was signed by one surety only and that it was not approved by a regularly appointed acting county judge. A motion for a new trial was filed on October 28, 1958. On March 12, 1959, the appellant filed a motion for leave to file an amended appeal bond meeting statutory requirements. On March 13, 1959, appellant filed an amended appeal bond signed by two sureties, with justifications attached. On April 7, 1959, the trial court overruled the motion for a new trial and appellant has appealed therefrom to this court.

A bill of exceptions has been filed in this court which appellees concede has met the requirements set forth in State ex rel. Bankers' Reserve Life Ass'n v. Scott, 59 Neb. 499, 81 N.W. 305. We accept the bill of exceptions as correctly stating the evidence taken and the proceedings had in the district court.

The record shows that the appeal bond alleged to be defective was approved by 'Ben F. Wilkinson County Judge.' Wilkinson was not the elected county judge of Cherry County. The evidence shows that he held himself out as the county judge while the regular occupant of the office was absent from the county. The fact that he purported to file and approve the appeal bond as county judge is evidence that he held himself out as such. The evidence shows also that the county commissioners of Cherry County took the following action in May 1957: 'By action of the County Board Ben F. Wilkinson, Clerk of the District Court was appointed to act as County Judge in the absence of County Judge C. H. Elliott.' The evidence shows that Wilkinson did not qualify by taking an oath of office or giving a bond.

The evidence is clearly sufficient to show that Ben F. Wilkinson was county judge de facto of Cherry County. Where a person is appointed by the proper authority as acting county judge and thereafter performs duties of the office and holds himself out to the public as such officer, but has failed to give the required statutory bond or take the required statutory oath of office, such person is a county judge de facto. Gragg v. State, 112 Neb. 732, 201 N.W. 338; Baker v. State, 112 Neb. 654, 200 N.W. 876. See, also, 43 Am.Jur., Public Officers, § 471, p. 225. The acts and judgment of a de facto officer are as valid and binding as though performed and rendered by an officer whose title was beyond dispute. Dredla v. Baache, 60 Neb. 655, 83 N.W. 916.

At the hearing on the motion to quash the appeal bond, the appellant advised the court: 'If I am wrong in my interpretation of this I can forthwith produce another surety; if that is required by the Court. In fact I had a surety come in town for the purpose of signing that bond.' This was clearly an application to the court by appellant to furnish a proper bond if the bond on file was insufficient. It was an abuse of discretion for the trial court not to permit the filing of an amended bond.

In Rube v. Cedar County, 35 Neb. 896, 53 N.W. 1009, this court held: 'This undertaking, although...