Opinion
No. 36117.
Filed March 11, 1966.
1. Criminal Law: Recognizances. Under section 29-611, R.R.S. 1943, a defendant is required to file a written bond with one or more sureties in the amount fixed by the court as a condition precedent to an appeal. 2. ___: ___. The bond required by section 29-611, R.R.S. 1943, is jurisdictional and objection to its validity may be raised at any time in any appropriate manner. 3. ___: ___. A defendant may not complain on appeal for the failure of the trial court to permit the posting of a valid appeal bond in lieu of a defective one, assuming that such right existed, when no request was made in the trial court to do so.
Appeal from the district court for Box Butte County: ALBERT W. CRITES, Judge. Affirmed.
Wade H. Ellis, for appellant.
Clarence A. H. Meyer, Attorney General, and Chauncey C. Sheldon, for appellee.
Heard before CARTER, SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ., and BRODKEY, District Judge.
Defendant was convicted in a justice of the peace court of Box Butte County on March 5, 1965, for operating a motor vehicle upon the public highways while under the influence of alcoholic liquor or drug. Defendant gave notice of appeal and filed an appeal bond. The State moved the court to dismiss the appeal for failure of the defendant to file a bond as required by law. The trial court sustained the motion and dismissed the appeal. The defendant has appealed from the order of the district court dismissing his appeal.
The bond filed by the defendant was conditioned that defendant "shall personally be and appear before The District Court, Box Butte County, Nebraska on the 27th day of September 1965, at 10:00 o'clock A.M. of said day, and from day to day, and from term to term, until final judgment or as directed by said Court, until finally discharged, to answer the charge of driving while under the influence of alcoholic liquor or drug and to do and receive what shall be enjoined by said Court upon him, and shall not depart said Court without leave."
The statute providing the terms and conditions for appeal in this type of case is 29-611, R.R.S. 1943. Insofar as material here, this section provides: "No appeal shall be granted or proceedings stayed unless the appellant, together with his surety or sureties, shall, within ten days after the rendition of such judgment, appear before such magistrate, and then and there enter into a written recognizance to the people of the State of Nebraska in a sum not less than one hundred dollars, with surety or sureties to be fixed and approved by the magistrate before whom such proceedings were had, conditioned for his appearance forthwith and without further notice, at the district court of such county, and from day to day thereafter until the final disposition of such appeal, to answer the complaint against him, and to abide the judgment of the district court and not depart therefrom without leave; * * *."
The appeal bond did not contain a surety. The bond was executed only by the defendant. In Zobel v. State, 72 Neb. 427, 100 N.W. 947, this court said in a case involving an appeal in a misdemeanor case: "If the sureties alone attempted to enter into a recognizance for defendant's appearance in the appellate court, it can hardly be doubted that the failure of the defendant to become a party thereto would invalidate the attempted appeal, and we cannot see any good reason, on the other hand, for disregarding the plain statutory provision as to sureties and holding that a recognizance is sufficient and in compliance with the statute when entered into by the defendant alone. Both provisions seem equally binding and mandatory, and a failure to comply with one would be as fatal as would be the failure to comply with the other. * * * The question is, has such a recognizance been entered into as the statute says must be given as a condition to the right of an appeal? May a defendant have more time or give a recognizance in a less amount than is provided by section 324, or give one without the sureties as therein provided? The answer, as has been indicated, must, we think, be in the negative."
The appeal bond in the instant case is defective in that it contains no surety. The trial court so found. The ruling of the court is correct.
The defendant asserts, however, that the trial court erred in not offering him an opportunity to file a proper bond. The difficulty with defendant's position is that he made no request for leave to file a sufficient bond. For aught the trial court knew defendant could not provide such a bond, or elected to stand on the bond filed. The trial court committed no error in this respect for the simple reason that defendant gave it no opportunity to pass on the question. It is a fundamental rule that to make error in a trial available for a reversal in the appellate court it should be called to the attention of the district court and be affirmatively shown on the record for review. Parker v. State, 164 Neb. 614, 83 N.W.2d 347; Sedlacek v. State, 147 Neb. 834, 25 N.W.2d 533, 169 A.L.R. 868.
It is argued that section 29-901, R.R.S. 1943, permits a deposit of cash in lieu of a written bond with sureties and that such statute is applicable to an appeal under section 29-611, R.R.S. 1943. Defendant states in effect that he deposited $200 in cash in addition to the written bond. The record before us does not sustain such a factual situation. There is no bill of exceptions in this case. We are bound by the record contained in the transcript since it denotes absolute verity.
The transcript shows that the complaint was filed in the justice of the peace court on February 23, 1965. Defendant was brought into court and arraigned. He entered a plea of not guilty. Bond was set at $200, and furnished. The case was set for trial on March 5, 1965. Defendant appeared with his attorney for trial on that day. The transcript further shows "Bond for appearance refunded to Defendant." A notation in the transcript shows the appearance bond was refunded on March 5, 1965, by check numbered 1557. We find nothing else in the record which even remotely refers to a cash bond being provided in the furtherance of the appeal to the district court. The transcript does not sustain the conclusion of fact asserted by the defendant that defendant provided a cash bond in addition to the written bond containing no surety.
Defendant contends that the state may not question the regularity or validity of the bond 30 days after the transcript is filed in the district court. The filing of an appeal undertaking, as provided by section 29-611, R. R. S. 1943, is a condition precedent to the jurisdiction of the appellate court. The bond being jurisdictional, objection to its validity may be raised at any time in any appropriate manner. Security Mutual Life Ins. Co. v. Gilliam, 143 Neb. 673, 10 N.W.2d 670.
The conclusions reached make it unnecessary to discuss other errors assigned. For the reasons herein stated, the judgment of the district court is affirmed.
AFFIRMED.