Pratt v. Jarvis

ANDERSON, J.: The record shows that the plaintiff obtained a judgment against the Jarvis-Conklin Mortgage Trust Company in a commissioner’s court for $190 and costs. An execution was issued upon the judgment, which was returned unsatisfied, and the officer further returned that no property of said company could be found in his county. Upon proceedings supplemental to execution before the commissioner the commissioner found that the defendant herein, Samuel M. Jarvis, as president of the defendant company in that action, had in his hands, or under his control, ample funds with which to pay said judgment, and that he refused to make such payment. March 5, 1891, the court ordered and adjudged that the said Jarvis forthwith pay the judgment and costs, and, in the event of his neglect or refusal so to do, that he be committed to the jail of Weber county for contempt of court. March 6, 1891, the defendant herein, Jarvis, filed a notice of appeal, and an undertaking on appeal. March 7th the plaintiff served a notice on the defendant, Jarvis, excepting to the sufficiency of the undertaking on appeal, for the reason that the sureties in the undertaking had not justified as required by law. March 10, 1891, three days after this notice was given, the sureties appeared before the commissioner, and were sworn and examined touching their qualifications as, such, and were found to be sufficient, and the undertaking was approved. The district court dismissed the appeal, because the sureties failed to justify before the commissioner within two days from the [7] day notice of exception to tbe sufficiency of tbe sureties on tbe undertaking was served. This appeal is from tbe order of the court dismissing tbe appeal. An appeal from a commissioner’s court is governed by tbe same rules that apply in a justice’s court. Section 3660, 2 Comp. Laws, 1888, provides that “an appeal from a justice’s court shall not be effectual for any purpose unless an undertaking be filed within five days after filing tbe notice of appeal, with two or more sureties,” etc. “Tbe undertaking shall be accompanied by the affidavits of tbe sureties that they are residents of tbe county, and are each worth tbe amount specified in the undertaking,” etc. “The adverse party may, however, except to the sufficiency of the sureties within two days after the filing of the undertaking; and unless they, or other sureties, justify before the justice from whose court the appeal was taken, within two days thereafter, upon notice to the adverse party, the appeal shall be regarded as if no undertaking had been given.” These provisions of the statute in relation to . appeals are mandatory, and, no sufficient undertaking1 having been given within the time required, the appeal was properly dismissed, and the order of the district court dismissing the appeal is affirmed. Zake, C. J., and BlacKBURN, J., concurred.