Buttolph v. Town of Postville

*90 Oliver, J. To perfect an appeal to district court on sucb special assessment tbe person affected (in addition to serving notice and filing a petition) must file, in tbe office of tbe clerk of said court, an appeal bond approved by said clerk, conditioned for the payment of all costs which may be adjudged against plaintiff. Section 6064, Code of Iowa, 1939. In tbis case tbe ground of tbe motion to dismiss tbe appeal sustained by the district court was that appellants bad failed to comply with tbe statutory requirement that the bond be approved by tbe clerk of tbe district court. When the appeal to district court was taken the clerk was ill and tbe bond was tendered along with tbe petition and notice of appeal to an assistant, who bad been placed in sole charge of tbe office of said clerk. Tbis assistant merely placed the official filing stamp upon tbe bond, and, without considering it, filed it with tbe other papers in tbe case. Nor was tbe bond ever formally approved by tbe assistant or the clerk. Code section 12759.1 (enacted in 1929) provides that tbe filing, by an approving officer, of a duly tendered appeal bond shall carry tbe presumption until tbe contrary is established that said officer approved tbe bond even though no formal approval is endorsed on tbe bond. Appellee contends tbe filing of tbe bond by tbe assistant to tbe clerk was not sufficient to generate this presumption of approval because tbe assistant was not a regularly appointed deputy and bad not been authorized to approve bonds. With tbis contention we do not agree. Obviously, tbe rights of litigants and others should not be snuffed out by tbe incapacity of tbe clerk and bis placing of an assistant in sole charge of bis office in bis place with apparent authority to perform its routine duties. Murphy v. Lentz, 131 Iowa 328, 108 N. W. 530. However, tbis situation is a circumstance which may be considered in determining whether or not the record showing was sufficient to overcome tbe presumption raised by tbe filing of tbe bond. Code section. 12754 provides that tbe surety in every bond provided for by law must be a resident of tbis state. Mr. Homuth, tbe only surety in tbis bond, was not a resident of the state. The bond tendered with sucb disqualified surety was not sucb bond as tbe statute required. Nor could tbe clerk, in the *91 exercise of his discretion, have properly approved it. Porter v. Telegraph Co., 133 Iowa 747, 111 N. W. 322, 12 Ann. Cas. 585; Hudson v. Smith Bros., 111 Iowa 411, 82 N. W. 943. From his standpoint the bond was invalid, and its approval interdicted because the surety thereon was not qualified. The statutory presumption attendant upon the filing of a bond is for the benefit of valid bonds. Mills v. Board of Supervisors, 227 Iowa 1141, 290 N. W. 50. To extend this presumption to a bond clearly invalid would result in its conflict with the presumption that the clerk, as a public official, acted legally. However, appellants contend that no surety is required upon this bond because the statute does not expressly mention sureties. The sole purpose of the bond is to secure payment of a judgment for costs, which may be rendered against its principals as appellants. Without sureties such bond would be of no benefit. Minton v. Ozias, 115 Iowa, 148, 88 N. W. 336. The interpretation sought by appellants would render ineffectual similar provisions in various other statutes. It is contrary to statutory expression concerning the sureties in bonds provided for by law as well as to the generally accepted conception that a statutory bond is synonymous with additional security. Hudson v. Smith Bros., 111 Iowa 411, 82 N. W. 943. We think it is without merit. Appellants also contend the trial court should have permitted the correction of the defects in the bond or the furnishing of a new bond under Code section 12753, which permits the rectification of defects in bonds. This statutory provision appears in the chapter with Code section 12759.1, and it would seem that the two sections should be considered together. But the eases interpreting section 12753 clearly differentiate between bonds merely defective or irregular in form and those which are classed as invalid or void. They hold that a void bond is the same as no bond at all so that in such ease there is no bond to form a basis for correction under section 12753. The absence of a qualified surety places this bond in that category. Therefore, we think the court properly refused to permit the so-called rectification of the defects in this bond, or the giving of a new bond. Brock v. Manatt, 1 Iowa (Clarke) 128; Mitchell v. Goff, 18 Iowa 424; Fairfield v. Jefferson County, 168 Iowa 623,151 N. W. 53; Woodard v. Iowa City, 212 Iowa 326, 232 N. W. 806; *92 McCord v. Cherokee, 180 Iowa 448, 161 N. W. 440; Sutton v. Bower & Perkins, 124 Iowa 58, 99 N. W. 104; Minton v. Ozias, 115 Iowa 148, 88 N. W. 336. We conclude the statutory presumption of approval arising from the filing of the bond was overcome and the contrary was established by the showing in this case and that the trial court properly dismissed the appeal. Appellees’ motion to- dismiss this appeal, which was submitted with the case, is overruled.- — Affirmed. Chief Justice and all Justices concur.