Towle v. Bradley

Citations

• 2 S.D. 472
• 50 N.W. 1057
• 1892 S.D. LEXIS 10

Syllabus

<p>1. Section 469, Comp. Laws, provides that “no practicing attorney and counselor shall be a surety in any suit or proceeding which may be instituted in any of the courts of this territory,” Held, that this section applies to all suits and proceedings pending in the courts of this state, and is not limited to those with which an attorney may be connected in his professional capacity.</p> <p>2. Held, further, that the statute deprives an attorney of the legal power or ability to become a surety in an undertaking in any such suit or proceeding.</p> <p>3. Held, further, that it is not a personal privilege which an attorney, or a party to the action in which an attorney executes an undertaking' as surety, may waive, but, on grounds of public policy, the statute intends to and does disqualify him absolutely from entering into any such contract.</p> <p>4. An undertaking on appeal from a justice’s court was executed by two sureties, one of whom was a practicing attorney in the courts of this state. Held, thatsuch an undertaking was insufficient, and the appellate court, on being advised in the proper manner of the defect in the undertaking, could proceed no further in the action until a sufficient undertaking was filed. Held, further, that when the court, after the fact that one of the sureties in the undertaking' on appeal was a practicing' attorney in the courts of this state was clearly established, proceeded to try the action and enter a judgment, without anew undertaking being filed, it committed error for which the judgment must be reversed.</p> <p>5. The exception to sureties provided for by Section 6133 is limited to the pecuniary responsibility of the sureties, and not to the undertaking itself, or the competency of the sureties to enter into such a contract. Held, therefore, that a failure to except to the sufficiency of the sureties under that section was no waiver of the right to object to the undertaking in the appellate court because of the incompotency of o