State ex rel. County of Houston v. Fitch

Gileillan, C. J. The board of county commissioners of the county of Houston having denied a petition for the laying out of a highway through several towns of the county, one David W. Robinson presented a petition for appeal to the respondent, a justice of the peace of the county, and also presented to him a bond for appeal, executed by himself as principal, and by another person as surety, which bond was approved by the justice, and he thereupon issued the summons required in such cases, which was properly served. On the appearance day the commissioners appeared for the purpose of moving, andl moved, that the appeal be .dismissed for want of jurisdiction, for that! . no, bond, had been executed and filed as required„hy law. The.motionl 533 AVas- overruled. It is unnecessary to state-the further proceedings, - except that a verdict reversing the action of the commissioners1 was taken, and the county commissioners sued out this writ of certiorari to quash the proceedings before the justice. The objection is made here that the county commissioners are not proper parties to prosecute the writ. As it is to be considered as prosecuted on behalf of the county, the commissioners are the proper parties to prosecute it. Gen. St. 1878, c. 13, § 60, under which the appeal was taken, provides that, upon filing the application for appeal, “and a bond executed to the supervisors of the town, or the commissioners of the'county, with sufficient sureties, to be approved by the justice, conditioned,” etc., “such justice shall issue a summons, specifying therein a time and place for the hearing,” etc. The filing of the bond is a prerequisite to the right to issue the summons, as much as is the filing the application. Both must be filed before there is- any jurisdiction to issue the summons, and the bond must be such as is- required by the section. That requires a bond with sufficient sureties. The phrase “sufficient sureties” was construed, in Blake v. Sherman, 12 Minn. 305, (420,) to mean two or more sureties. The bond, having but one surety, was therefore insufficient, and the justice did not acquire jurisdiction to proceed in the appeal. All the proceedings before him, including the verdict, must be quashed. Let judgment be entered accordingly.