Stewart v. Lyness

• Decision Date: 13 October 1911
• Citation: 132 N.W. 768,22 N.D. 149
• Parties: STEWART v. LYNESS.
• Court: North Dakota Supreme Court

22 N.D. 149

132 N.W. 768

STEWART

v.LYNESS.

Supreme Court of North Dakota.

Sept. 20, 1911.

Rehearing Denied Oct. 13, 1911.

Syllabus by the Court.

Section 7208, R. C. 1905, provides that, to render an appeal from the district court to the Supreme Court effectual for any purpose, an undertaking must be executed on the part of the appellant by at least two sureties to the effect that the appellant will pay all costs and damages which may be awarded against him on the appeal, not exceeding $250. Section 7221 provides that an undertaking upon appeal shall be of no effect, unless accompanied by the affidavit of the sureties, in which each surety shall state that he is worth the sum mentioned in such affidavit over and above all his debts and liabilities in property within this state, not by law exempt from execution, and the sum so sworn to by such sureties shall in the aggregate be double the sum specified in such undertaking. Held, that an appeal to this court in which the undertaking referred to in said sections is supported by an affidavit which fails to state that the property of the sureties is within this state in the amount specified is ineffectual for any purpose, and that such undertaking must be stricken out on motion, and the appeal dismissed.

No intimation is made as to any rights of the appellant under the provisions of section 7224, R. C. 1905, for the reason that he stood upon the undertaking and affidavits furnished.

Appeal from District Court, Wells County; Burke, Judge.

Application by James R. Stewart for mandamus to Hampton Lyness. From an order overruling and denying a motion for a peremptory writ, and granting a motion to quash an alternative writ issued in the cause, an appeal is taken. Appeal dismissed.Herman Winterer and D. S. Ritchie, for appellant. John A. Layne and Maddux & Rinker, for respondent.

SPALDING, J.

This is an appeal from an order of the district court of Wells county overruling and denying appellant's motion for a peremptory writ of mandamus, and granting the motion of respondent to quash an alternative writ issued in the cause, and dismissing the same.

[1] The respondent submitted a motion to dismiss the appeal upon each of several grounds stated in the motion papers, and a motion, among others, to strike out appellant's undertaking for costs and damages on the appeal. This last motion must be granted and the appeal dismissed. Section 7205, R. C. 1905, provides, among other things, that an appeal shall be deemed taken by the service of a notice of appeal, and perfected on service of an undertaking for costs or the deposit of money instead, or the waiver thereof. Section 7208 provides that, “to render an appeal effectual for any purpose, an undertaking must be executed on the part of the appellant by at least two sureties to the effect that the appellant will pay all costs and damages which may be awarded against him on the appeal, not exceeding $250.00.” Section 7221 provides that an undertaking upon an appeal shall be of no effect unless accompanied by the affidavit of the sureties, in which each surety shall state that he is worth a sum mentioned in such affidavit over and above all his debts and liabilities in property within this state, not by law exempt from execution,...