Opinion
No. 32,785.
January 3, 1941.
Action in the district court for Hennepin county by Carroll S. Geddes against J.P. Broman and others, wherein defendant A.P. Cook appealed from a judgment against him in favor of plaintiff, Frank E. Reed, Judge. On motion of plaintiff to dismiss appeal for want of proper appeal bond. Motion granted on condition.
John B. Richards, for appellant.
Arthur B. Geer and Freeman King, for respondent.
Respondent moves to dismiss the appeal for want of a proper bond. Appellant asks the court to be allowed to file another bond and for leave to submit this appeal upon the record and briefs served and filed in the appeal from the order denying appellant a new trial.
The judgment appealed from was rendered May 25, 1940, and the time to appeal therefrom expired November 25, 1940, the day of the hearing of the appeal from the order denying a new trial. On such hearing respondent moved to dismiss the appeal on the ground that it was not taken within 30 days after service of notice of the filing of the order on appellant by respondent, and hence this court was without jurisdiction. On authority of Johnson v. Union Savings B. T. Co. 193 Minn. 357, 258 N.W. 504, the appeal was dismissed, Geddes v. Broman, 208 Minn. 609, 294 N.W. 845, and from the bench the attorneys were informed that if an appeal from the judgment was perfected in time they might submit such an appeal upon the record and arguments had. Appellant's attorney at once gave notice of appeal from the judgment, but, in the absence of his client, could not obtain the usual bond or undertaking required by 2 Mason Minn. St. 1927, § 9499. So appellant's attorney filed his own bond for costs in the sum of $250, approved by the trial judge.
Of course the bond is inadequate, there are no sureties, and it is not in the form required by the statute. The judgment appealed from exceeds $1,500. The inadvertence or mistake of his attorney should not preclude appellant from having the appeal heard and determined. In Sworski v. Colman, 203 Minn. 545, 282 N.W. 276, where no sort of a bond was given, we refused to dismiss the appeal if the appellant within a fixed time filed a proper bond. So here, defendant Cook's appeal will be dismissed unless within ten days after the service upon his counsel of notice of filing of this decision he furnishes an approved appeal bond or undertaking in the sum of $2,000, or, in lieu thereof, deposits cash as required by § 9499.
It is further ordered that the printed record and briefs served and filed in appeal No. 32,587 from the order denying a new trial will be allowed as the record and briefs in this appeal, No. 32,785, from the judgment, with such additions as the parties deem necessary thereto.