McDonald v. Paris

Citations

• 9 S.D. 310
• 68 N.W. 737
• 1896 S.D. LEXIS 151

Syllabus

<p>1. Under Comp. Laws, See. 6133, providing that, upon filing the bond on appeal from a justice court, the adverse party may except to its sufficiency and unless the sureties justify within five days thereafter, upon notice to such adverse party, the appeai must be regarded as if no such undertaking had been given, a justification without notice to the adverse party confers no jurisdiction on the circuit court.</p> <p>2. The sufficiency of the sureties to an undertaking on appeal from justice court having been excepted to, the appellant offered new sureties, but failed to serve notice of their justification upon the adverse party as required by Comp. Laws, Sec. 6133. Upon motion in the circuit court to dismiss the appeal on the ground that there was no undertaking', the appellant asked to file a new undertaking. Held, that the application was properly refused.</p> <p>3. The return of a notice of exceptions to the sufficiency of an undertaking on appeal from justice court recited that it came into the hands of the officer July 2d and was served August 3d. The undertaking was filed on August 1st. Held, that the notice, having been served after the exceptions were filed, was valid, though given to the officer before the exceptions were filed.</p> <p>4. On appeal from the dismissal of an appeal from a justice court, for the reason that notice of the justification of the sureties had not been given to the adverse party, where it was claimed by the appellant that such notice had been waived, the only evidence of such waiver was the insertion in the justice’s certificate of justification of the words “and by agreement of parties,” which words were erased by a line drawn through them. Held, that in the absence of evidence to the contrary, it would be presumed that the words were erased by the justice himself before the return was filed.</p>