Schrot v. Schoenfeld

Mr. Justice Morris delivered the opinion of the Court: We are of opinion that the supreme court of the District was entirely right in dismissing the appeal taken to it from the justice of the peace. The Code (§§30 and 31) peremptorily requires that no appeal shall be allowed from the judgment of a justice of the peace, except upon the condition precedent that an undertaking, with sufficient surety, shall be given by the appellant, within six days after the entry of judgment, to satisfy and pay any final judgment that may be recovered in the appellate court; and that such undertaking must stipulate that the [425] judgment of the appellate court may be entered against both the principal and the surety or sureties. No such undertaking was. given in this case. No undertaking whatever was given within the time limited by the law. The undertaking which was actually given failed utterly to comply with the requirements of the Code. Its condition was not the condition required by the statute, but a radically different one. An undertaking to pay damages and costs is not an undertaking to' pay a judgment; and the omission from the undertaking that was given, of the essential provision that the judgment might be rendered against both the principal and the surety, is a radical departure from the requirement of the law. As well may an undertaking have been filed conditioned for the delivery of' goods in New York. In contemplation of law there was no undertaking in this case upon which to base the appeal; and as § 31 of the Code makes the filing of a proper undertaking, such as is there specified, a condition precedent to the allowance of the appeal, the failure of the parties to execute such an undertaking is fatal to their standing in the appellate court. Various decisions of the Supreme Court of the United States ore cited to show that “the taking of security [in connection with the allowance of appeal or citation upon writ of error] is not jurisdictional in its character, and its omission affects only the regularity of the proceedings,” and that such omission may be supplied in the appellate court. Brown v. McConnell, 124 U. S. 492, 31 L. ed. 497, 8 Sup. Ct. Rep. 559; Knox County v. Harshman, 132 U. S. 14, 33 L. ed. 249, 10 Sup. Ct. Rep. 8; Hudson v. Parker, 156 U. S. 287, 39 L. ed. 427, 15 Sup. Ct. Rep. 450; Seward v. Corneau, 102 U. S. 162, 26 L. ed. 86; Dayton v. Lash, 94 U. S. 112, 24 L. ed. 33; Jerome v. McCarter, 21 Wall. 29, 22 L. ed. 516. But these and other similar cases were fully considered by this court in the case of United States ex rel. Mulvihill v. Clabaugh, 21 App. D. C. 440; and it was there pointed out that § 1000 of the Revised Statutes of the United States (U. S. Comp. Stat. 1901, p. 712), under which those cases were decided, was a directory and not a mandatory statute, while the rules of this court, made in pursuance of ex [426] press statutory authority, were, in regard to the matter of appeals to this court from the supreme court of the District, mandatory in their character and jurisdictional in their effect. The provision of the Code respecting appeals from justices of the peace to the supreme court of the District is even more peremptory than the rules which govern appeals to this court, and the reasoning of the Mulvihill Case applies more strongly, if possible, to the former class of appeals than to the latter. There can be no reasonable doubt whatever that it was the intention of the lawmakers, in formulating this provision of the Code, to make the filing of an undertaking, such as is there prescribed, an essential prerequisite and condition precedent to the allowance of any appeal. Such provision is in full accord with the general spirit of the policy which remits these small debts to the summary jurisdiction of justices of the peace. What we have said is upon the theory that the appeal taken to this court brings up for review here the action of the supreme court of the District in dismissing the appeal taken to that court from the justice of the peace. So far as the appeal to this court seeks to review the action of the court below in refusing to allow an amendment of the undertaking, it is sufficient, of course, to say, in accordance with the general rule on the subject, that the allowance or refusal of an amendment by the trial court is in the discretion-of that court, and is not the subject of appeal, and there is nothing in § 399 of the Code, cited on behalf of the appellants, to make it mandatory on the courts to allow amendments. The provision is that the courts “shall have power” to allow amendments upon such terms as seem best to them. This simply reposes a reasonable discretion in the courts. But the question here is really not whether an amendment of an undertaking shall be allowed, but whether a proper undertaking may be filed for the first time in the appellate court; and this we hold cannot be done where, as in the present instance, the filing of a proper undertaking is a condition precedent before the allowance of any appeal. There is another fatal defect in the case of the appellants. The statute which requires an undertaking to be given as the [427] condition precedent for an appeal also provides that it shall be given within six days after the rendition of judgment. This provision is likewise mandatory and jurisdictional. It may be that, as we have heretofore held in another case, if the bond or undertaking has been presented to the court or justice in due time for approval, and such approval is for any good reason postponed beyond the time limited for the giving of the bond or undertaking, yet the party should not thereby be deprived of his right of appeal. But it is incumbent on the party to present the bond or undertaking within the specified time, and if he does not do so his right to an appeal is lost. It is claimed in argument that the undertaking in this case was presented to the justice of the peace on February 4, 1903, which was within the time limited; and, as already stated, the record contains a notice from the counsel of the appellants to the counsel of the appellee, reciting that on that day he had filed with the justice a “motion and bond for appeal.” But the record contains no proof of the fact; the docket entries of the justice are silent on the subject; and the undertaking on its face purports to have been “signed, sealed, and acknowledged” before the justice on the 11th day of February, 1903. And the docket entries of the justice corroborate the fact of its execution on the last-mentioned day. This was too late. The time for perfecting the appeal had passed. We are of opinion that there was no error in the action of the court below in dismissing the appeal that was taken to it in this case from the justice of the peace; and that its judgment here appealed from should be affirmed with costs. The cause will be remanded to the Supreme Court of the District of Columbia, with directions to carry such judgment or order into effect. And it is so ordered. Affirmed.