Sweeney v. Karsky

By the Court, Massey, J. : The respondent instituted a proceeding to contest the election of one P. J. Hjul to the office of sheriff of Eureka county. The trial of this proceeding resulted in a judgment in favor of the said Sweeney. Hjul appealed therefrom to the supreme court, and, for the purpose of securing a stay of execution of the judgment, procured the appellants herein to execute an undertaking on appeal. The third recital in the undertaking was to the effect that, as the said Hjul was *201 desirous of staying the execution of the judgment in so far as it relates to the possession of said office and his incumbency therein, the appellants undertook and acknowledged themselves jointly and severally bound unto the respondent in the sum of $1,000 (being the amount for that purpose fixed by the district judge), conditioned that if the said judgment appealed from be affirmed, or the appeal dismissed, that the said Hjul would pay the value of the use and possession of said office from the time of the appeal until the delivery of the possession of the same to the respondent, not exceeding the said sum of $1,000. It was also recited in the undertaking that the judgment of the district court was rendered on the____day of January, 1897, declaring and adjudging that the respondent was duly elected sheriff of Eureka county on the 3d day of November, 1897. The judgment of the district court having been affirmed by the supreme court, this action was commenced upon the undertaking to recover the fees and emoluments according to the conditions thereof. From a judgment in favor of the respondent, and the order denying appellants’ motion for a new trial, this appeal has been taken. Only two questions are argued by the counsel for appellants: 1. It is claimed that the undertaking is not authorized by law, and is therefore void. It has been held by this court that new trials and appeals in contested election cases are regulated by the civil practice act. (Lynip v. Buckner, 22 Nev. 426, 41 Pac. 762.) This act makes provision for the stay of execution of judgments on appeal, and the manner of giving and the form of the undertaking on appeal for such purpose are in many instances specifically set out. (Gen. Stats. 3364-3369.) It is provided in the last clause of section 3367 that, in all cases not mentioned, the amount of the undertaking to stay the execution of the judgment or order shall be fixed by court or the judge thereof. The stay of execution of judgment in contested election cases, not being specifically provided for, comes under this clause, and the recitals of the undertaking sufficiently show that all required steps were taken to render it a valid contract under the law. *202 2. It is further claimed that the recital of the undertaking to the effect that the judgment was rendered in January, 1897, adjudging that the respondent was duly elected sheriff of Eureka county on the 3d day of November, 1897, renders it void. The law fixing the time for holding the election, the recitals in the record, and the recitals of the undertaking conclusively show that the date of the election named is a mere clerical error. It is a general rule of construction that certain obvious forms of mistaken expression, such as clerical, verbal, or grammatical errors, can be set right without any special remedies, by ordinary rules of construction. It has been well said, in discussing a question similar to the one at bar, involving the validity of a recognizance: “ It is a patent clerical error, which consisted in writing ‘ 1882 ’ instead of ‘ 1883.’ The whole record by which the matter is to be tried shows this. We know judicially that the next regular term of the Newton circuit court, after the recognizance was taken, was required by law to be held on the second Monday in February, 1883. The record shows that it was in fact so held. The parties entering into this recognizance cannot be supposed to have meant an absurdity. They meant to do what the law permitted them to do in such a case — to enter into an obligation of record conditioned that the accused should appear at the next regular court of the county. * * * All modern courts appear to have united upon a rule, in cases at law as well as in cases in equity, that obvious clerical mistakes on the face of a written contract may be corrected with reference to the. manifest intent of the parties as gathered from the whole instrument.” (State v. McElhaney, 20 Mo. App. 587; Wald’s Pol. Cont. 453.) For these reasons the judgment and order appealed from will be affirmed.