
    PRICE v. PRICE.
    No. 9331
    Opinion Filed Oct. 1, 1918.
    (175 Pac. 343.)
    1. Justices of the Peace — Appeal—Failure to File Bond — Jurisdiction.
    ■ Where the original papers in a case tried before a justice of the peace reach the district court without an appeal bond, that court acquires no jurisdiction of the cause, even though the parties thereto appear and plead to the merits, notwithstanding the district court had original jurisdiction of (he subject-matter.
    2. Same — Perfection of Appeal.
    Before the district court can hear and determine a case appealed from the justice of the peace, its appellate jurisdiction must be perfected by a strict compliance with the requirements of the statute regulating such appeals.
    3- Same — Sufficiency of Bond — Duty of Appellant.
    It is the duty of a party desiring to appeal to see to it that the appeal bond is sufficient in law, and he will not be heard to complain thereafter, if such bond is defective nor will the negligence or carelessness of the justice in approving a fatally defective bond excuse the appellant from the performance of such duty.
    4. Same — Waiver of Bond.
    The appeal bond required by section 5466, Rev. Daws 1910, is jurisdictional, and cannot. in the absence of statutory provision, be waived by the parties. Such bond is required, not only to protect the rights of the appellee, but also on the ground of public policy and for other reasons.
    5. Same — Transcript—Appeal Bond.
    Where the transcript of a justice court judgment, filed in the district court October 27. 1916, in an attempt to have the judgment of the justice of the peace there reviewed, shows that the judgment was rendered July 22, 1914, and no appeal bond accompanied such transcript, but it is recited therein that on June 8, 1916, the successor of the justice of the peace rendering the judgment made a finding that an appeal bond had been approved in said cause within 10 days of the date of such judgment, and where the appellant made no application to the district court to supply the defect in the transcript by substituting an appeal bond, and on January 23, 1917, tbe appellee presented a motion to dismiss tbe attempted appeal because of tbe absence of an appeal bond, held, that tbe district court did not acquire jurisdiction of sucb cause and tbe motion to dismiss tbe same was properly sustained.
    (Syllabus by Galbraith, C.)
    Error from District Court, Garvin County; E. E. Swank, Judge.
    Action in justice court by Milbert Price against R. T. Price. Prom an order overruling a motion for a new trial and dismissing an appeal from judgment in tbe justice court, defendant brings error.
    Affirmed.
    Blanton & Andrews, for plaintiff in error.
    Yerker E. Taylor, for defendant in error.
   Opinion by

GALBRAITH, C.

Tbis is an appeal from an order overruling a motion for a new trial in a proceeding wherein tbe trial court sustained a motion and dismissed an appeal from a judgment rendered in a justice of tbe peace court.

Tbe defendant in error, wbo was plaintiff below, insists here that tbe appeal should be dismissed for tbe reason that tbe case-made was improperly settled and signed in bis absence, and without giving him bis full time for sugggesting amendments thereto. It appears that tbe motion for a new trial was overruled on February 1, 1917, and an order entered on that date extending tbe time for making and serving tbe case-made for 60 days in addition to that allowed by statute, and allowing tbe defendant 10 days thereafter to suggest amendments, and that tbe case-made should be settled on a 5 days’ notice to either party. On March 16th thereafter an order was entered extending tbe time for making 'and serving tbe case-made 60 days in addition to tbe time theretofore given, and on June 9th another order was entered giving 30 days’ additional time for making and serving tbe case, and providing “that tbe plaintiff have 10 days thereafter to suggest amendments, and that said case-made may then be settled on 3 days’ notice to either party.” It thus appears that tbe time as extended for serving tbe ease-made expired on July 16, 1917. Tbe case-made was served on June 19, 1917. On July 26th, after tbe expiration of tbe 10 days allowed the defendant by tbe last order, extending tbe time for serving tbe case-made, bad expired, notice was served on tbe defendant’s counsel that tbe ease-made would be presented to tbe trial judge for settlement on July 30th. The record shows that tbe case-made was presented at tbe time and place specified in tbe notice, and was settled by tbe judge in tbe absence of tbe attorney for tbe defendant, and without bis having suggested any amendments to the ease-made. The' notice of settlement not having been served until after the expiration of tbe full 10 days allowed tbe defendant to suggest amendments, counting sucb time not from tbe date of service of case-made, 'but from tbe expiration of tbe time as extended for tbe service, to wit, July 15th, tbe settlement of tbe case seems to have been entirely regular according to tbe established practice in tbis jurisdiction. Cummings v. Tate et al., 47 Okla. 54. 149 Pac. 1149. And the contention that tbis court did not acquire jurisdiction of tbe appeal must be denied.

Tbe brief of tbe plaintiff in error, wbo was defendant below, after reciting that tbe original action was instituted before tbe justice of the peace on the 17th day of July, 1914, to recover on a written contract for goods, wares, and merchandise sold and delivered, and that the judgment was entered thereon by default on tbe 22d day of July, 1914, continues as follows:

“On tbe 27th day of October, 1916, a transcript of tbe proceedings had before tbe justice of tbe peace wasi duly filed in tbe office of the court clerk of Garvin county, Oklahoma, and proceedings on appeal were lodged in said court. There does not appear in tbe transcript of the proceedings from tbe justice court or in the district court a copy of the appeal bond from the justice of tbe peace, but the same appears to have been misplaced. Tbe justice of tbe peace, Jno. W. Scott, wbo succeeded W. T. Wallace in office, on tbe 8th day of June, 1916, made an order in bis court, on motion of the plaintiff in error herein, and said justice of the peace found that an appeal bond was filed by defendant within ten days from tbe date of tbe rendition of tbis judgment, and that tbe same was approved by W. T. Wallace, justice of tbe peace at that time.
“On tbe 23d day of January, 1917, the defendant in error filed a motion to dismiss said proceedings: First, because tbe appeal was not lodged in tbe upper court until more than two years after tbe rendition of tbe judgment in tbe court below; second, because no appeal bond was filed and approved by tbe justice of tbe peace wbo tried tbe case below within ten days after tbe rendition of tbe judgment.”

Tbe ease-made contains tbe following recital relative to tbe evidence:

“There was no evidence introduced or taken on tbe trial of tbis case by either tbe plaintiff or defendant.”

The case-made fails to show that tbe plaintiff in error made application to the district court to amend the transcript, and to substitute an appeal bond in lieu of the one “that appears to have been misplaced,” so as to give the district court jurisdiction to hear and determine said cause on appeal.

It appears from the recitals of the plaintiff in error’s brief that the transcript of the record from the justice of the peace court remained in the district court from the 27th day of October, 1916, until the 23d day of January, 1917, without an appeal bond. Without such bond the district court acquired no jurisdiction of the appeal, and in the absence of a request to the judge to be allowed to correct the record by supplying a substitute appeal bond, assuming that one had been filed with the justice of the peace rendering judgment, it was entirely ■ proper for the district court to sustain the motion to dismiss the appeal on the ground of absence of such bond.

The rules of law applicable and controlling in the instant case were announced by this court in the syllabi of the opinion in Washburn v. Delaney, 30 Okla. 789, 120 Pac. 620. The third, fourth, sixth, and eighth paragraphs thereof read as follows:

(3) “Where the original papers in a case tried before a justice of the peace reach the county court without an appeal bond that court acquires no jurisdiction of the cause, even though the parties thereto appear and plead to the merits, notwithstanding the county court had original jurisdiction of the sub j ect-matter.”
(4) “Before the county court can hear and /determine a cause appealed from a justice of the peace, its appellate jurisdiction must be perfected by a strict compliance with the requirements of the statute regulating such appeals.”
(6) “It is the duty of a party desiring to appeal to see to it that the appeal bond is sufficient in law, and he will not be heard to complain thereafter if such bond is defective, nor will the negligence or carelessness of the justice in approving a fatally defective bond excuse the appellant from the performance of such duty.”
(8) “The appeal bond required by section 6387, Comp. Laws 1909, is jurisdictional, and cannot, in the absence of statutory provision, be waived by the parties. Such bond is required not only to protect the rights of the appellee, but also on the ground of public policy and for other reasns.”

In the instant case it is not a question of a defective bond but an entire absence of an appeal bond. The only thing the transcript shows in regard to the bond is a finding made by the successor of the justice of the peace who rendered the judgment, that. an appeal bond had been filed and'approved by him within 10 days after the rendition of the judgment, and this finding was made on the 8th day cf June, 1916, almost two years after the date of the judgment. The record discloses that this transcript was filed in the district court without an appeal bond, and so remained from the date of its filing, on October 27, 1916, until the date of the motion to dismiss, January 23, 1916, and fails to show that the plaintiff in error made any attempt to supply this fatal defect in the record in order to complete the appeal and to transfer the jurisdiction from the justice of the peace, where the judgment was rendered to the district court where the transcript of the proceedings was filed, even at the time the motion to dismiss was presented or afterwards. It, therefore, clearly appears that the action of the district court in dismissing the appeal was correct. The grounds set out for a new trial were the general statutory grounds for such motion, with the additional ground that the court erred in sustaining the motion of the plaintiff to dismiss the appeal.

It therefore appears that the motion for a new trial was properly denied. The order appealed from should be, and is hereby, affirmed.

By the Court: It is so ordered.  