Surety Finance Co. v. Prinz

Full title: SURETY FINANCE COMPANY OF ABERDEEN, Appellant. v. THEODORE PRINZ et al.…

Court: The Supreme Court of Washington

Date published: Nov 30, 1932

16 P.2d 613 (Wash. 1932)

16 P.2d 613

170 Wash. 379

Opinion

No. 24144. Department One.

November 30, 1932.

APPEAL AND ERROR (193) — REQUISITES — APPEAL BONDS — NECESSITY OF TIMELY FILING. Where an appeal bond is not filed with the clerk of the superior court within five days, as limited by Rem. Comp. Stat., § 1721, the appeal must be dismissed; service of copy of the bond not being sufficient.

Appeal from a judgment of the superior court for Grays Harbor county, Phillips, J., entered March 18, 1932, upon findings in favor of the defendants, in an action upon a promissory note, tried to the court. Appeal dismissed.

John C. Graham, for appellant.

Clyde W. Linville, Jr., for respondents.

PER CURIAM.

This action was instituted by a payee to recover a balance claimed to be due on a promissory note. The trial of the cause to the court resulted in findings and judgment in favor of the defendants on their cross-complaint. The judgment was rendered February 4, 1932. On March 8, 1932, written notice of appeal from that judgment and a copy of supersedeas and appeal bond were served by plaintiff on counsel for defendants. The notice of appeal and the bond were filed in the office of the clerk of the superior court on March 18, 1932.

[1] The appeal bond was not filed in the office of the clerk of the superior court within the statutory period after notice of appeal to this court was served, therefore the appeal is ineffectual for any purpose, under the statute which provides that

"An appeal in a civil action or proceeding shall become ineffectual for any purpose unless at or before the time when the notice of appeal is given or served, or within five days thereafter, an appeal bond . . . be filed with the clerk of the superior court, . . .". Rem. Comp. Stat., § 1721.

The service of a copy of the bond on defendants' counsel at the same time that the notice of appeal was served was not a compliance with the statutory requirement that the bond "be filed with the clerk of the superior court" at or before the time the notice of appeal is served, or within five days thereafter.

The appeal is dismissed.