Kirtley v. Tuthill

The opinion of the court was delivered by Wells, J. : The only question in this case is as to the validity of an appeal bond in the following form : “Ben Kirtley, Plaintiff, 'j Judgment before H. Berg, a justice of tho V. >• peace of the city of Salina township and G. G. Dunmire, Defendant.) Saline county, Kansas. “Whereas, On the 20th day of June, 1898, the said plaintiff, Ben Kirtley, obtained a judgment against the said defendant on the docket of the said H. Berg, J. P., for two hundred and twelve dollars and a half and costs taxed therein at twelve and y9^ dollars, and the said defendant intends to appeal therefrom to the district court in and for said county : “Now, Therefore,We, G. G. Dunmire, as principal, and W. O. Tuthill, of Salina, as surety, do hereby, pursuant to the statute in such cases made and provided, promise and undertake in the sum of four hundred and fifty dollars that the said appellant will prosecute his said appeal to effect and without unnecessary delay ; and if judgment be adjudged against him on said appeal he will satisfy said judgment and costs. G. G. Dunmire. W. O. Tuthill. “Approved by me this 30th day of June, 1898. — H. Berg, Justice of the Peace.” Indorsements : “ Filed this 30th day of June, 1898. — H. Berg, Justice of the Peace.” [453] The objection to the bond is that it does not in express terms designate the obligee. Our justice’s.code was originally taken almost word for word from Ohio, and no change or amendment has been made therein that in any way affects the question at issue. The same form of an appeal bond as the one in controversy has been sustained by the supreme court of Ohio and has been in quite general use both in that state and in Kansas. In Job v. Harlan, 13 Ohio St. 490, the supreme court of that state disposed of this identical question in the following language : “There is nothing in the objection that the undertaking is not, in express words, made to the ‘ adverse party.’ It is entitled in the action, and taken and approved by the justice trying it. The docket shows that Weakly was surety for the appeal of this cause, and that the ‘ appellant ’ specified in the undertaking is the plaintiff, Harlan, and the appellee, or ‘ adverse party,’ is, of necessity, the defendant, Job. In this view, the undertaking is a substantial compliance with the statute. Besides, section 112 is, in this respect, identical with section 41 of the former statute (Swan’s St. of 1841, 512), and yet in the form given on page 527, for a recognizance under that section, the ‘adverse party,’ is not named, nor expressly alluded to, and the form there given is identical with the one used in the present case. The legislature, therefore, in using the same words, in the same connection, must be supposed to have sanctioned the legislative construction which had been put upon them.” In Wile et al. v. Koch, 54 Ohio St. 608, 44 N. E. 236, the supreme court of Ohio had an appeal bond of the same form before them, except that the bond was blank as to the name of the appellant and as to the amount of the limit of the liability of the surety, and yet the bond was sustained. If the question were a doubtful one, the fact that [454] this identical form of an appeal bond has been in quite general use in the state and territory for forty years and has not been held illegal by our supreme court should be given some weight in determining it. As was said in Harrison v. Benefit Society, 61 Kan. 134, 59 Pac. 267, “ the rule is well settled that in all cases of ambiguity the contemporaneous construction not only of the courts, but of the departments, and even of the officials whose duty it is to carry the law into effect, is controlling.” The judgment of the district court is reversed, and a new trial directed to be had in accordance with the views herein expressed. Mahan, P. J., concurring. McElroy, J., dissenting.