
    [No. 4193.
    Decided February 18, 1902.]
    Charles Murray, Respondent, v. John J. Moynahan et al., Appellants.
    
    APPEAL BOND-SUFFICIENCY-SURETY-QUALIFICATIONS.
    Under Bal. Code, § 6509, which provides that an appeal bond must be accompanied by the affidavit of the surety or sureties, in which each surety shall state that he is a resident of this state and is worth a certain sum mentioned in the affidavit, over and above all debts and liabilities, in property within this state, exclusive of property exempt from execution, and which sums so sworn to by the surety or sureties shall be at least equal to the penalty named in the bond if there be but one surety, or shall amount in all to at least twice such penalty if there be more than one surety, a bond will be deemed sufficient by the supreme court when it has but one surety, who justifies in the exact amount of the bond instead of double the amount thereof, and whose affidavit of justification, although he is a married man, does not state he is worth the sum mentioned in separate property, but merely follows the language of the justification prescribed by the statute.
    SAME-ATTORNEYS AS SURETY.
    The fact that the surety upon an appeal bond is an attorney at law would not disqualify him, in the absence of a statute prohibiting attorneys from acting in that capacity.
    SAME-ACKNOWLEDGMENT-AFFIDAVIT OF JUSTIFICATION.
    The fact that the acknowledgment and affidavit of justification upon an appeal bond are combined instead of being separately stated is not ground of objection, where the affidavit follows the demands of the statute.
    Appeal from Superior Court, Spokane County. — Hon-William E. Richardson, Judge.
    
      J ames Dawson, for appellants.
    
      Samuel R. Stern, for respondent.
   The opinion of tire court was delivered by

Dunbar, J.

Respondent moves to dismiss tbe appeal in this case for tbe following reasons: (1) That tbe bond given is by one surety only, and tbat surety is a married man and his wife bas not joined in said bond; (2) tbat tbe said surety is an attorney and counselor at law, duly admitted to practice in all tbe courts of tbis state; (3) tbat tbe justification upon said bond is wholly insufficient, in tbat tbe said justification is'in tbe sum of $200 only, tbe amount of said bond, although but one surety bas joined therein, and said surety should therefore justify in double tbe amount of tbe bond; (4) tbat tbe said surety, being married, does not, in bis affidavit, state tbat be is worth tbe sum therein mentioned by him in separate property, nor in personal property which can be subjected to execution; (5) tbat there is no separate acknowledgment upon said bond, but tbat tbe acknowledgment and affidavit are attempted to be combined.

Tbe first objection, tbat there is but one surety on tbe bond, is not tenable, under tbe statute. Section 6509, Bal Code, is as follows:

“An appeal bond, whether conditioned so as to effect a stay of proceedings or not, shall be of no force unless accompanied by tbe affidavit of tbe surety or sureties therein attached thereto, in which each surety shall state that be is a resident of tbis state and is worth a certain sum mentioned in such affidavit, over and above all debts and liabilities, in property within tbis state, exclusive of property exempt from execution, and which sums so sworn to by the surety or sureties, shall be at least equal to tbe penalty named in tbe bond if there be but one surety, or shall amount in all to at least twice such penalty if there be more than one surety.”

So that it will be seen the statute specially provides for a bond on appeal with one surety. The latter part of objection 1 (viz., that the surety’s wife has not joined in said bond) is raised in objection 4 (viz., that the said surety, being married, does not state that be is worth the sum therein mentioned in separate property). The surety in this bond does swear that he is a resident of the state of Washington, and is worth the sum of $200, the sum named in said bond, over and above all debts and liabilities, in property within the state of Washington, exclusive of property exempt from execution. ' This is the justification which the statute prescribes, and, in the absence of an investigation of the financial condition of the surety, it must be presumed that the affidavit is true, and that the surety has the amount justified to, which is responsive to execution issued upon the bond which he executes. If it is not true, then the respondent’s remedy is pointed out in the next section of the Code (§ 6510), which provides that any respondent may except to the sufficiency of the surety or sureties in an appeal bond, within ten days after the service on him of the notice of appeal, or within five days after the service on him of the bond or written notice of the filing thereof, by serving on the appellant a notice stating that he so excepts, and specifying a place at the county seat, and a time, not less than three nor more than ten days distant, at which the surety or sureties are required to attend before the superior court in which the judgment or order appealed from was rendered or made, or before a judge thereof, and to justify their sufficiency as sureties; and the question of such sufficiency is there investigated and settled by the court. It seems to us that the objection in this respect raised by the respondent falls squarely within the provisions of the section just quoted, and goes exclusively to the sufficiency of the surety; for, if the surety has not the amount that he has justified to, subject to execution in an action on the bond, then he would be an insufficient surety. It never could have been the intention of the legislature that the questions raised by the respondent, which, are matters of fact, should he tried out by the appellate court.

The second objection, that the surety is an attorney and counselor at law in this state, is also untenable, for the reason that there is no prohibitive statute in that respect. The statute on appeals to the supreme court does not provide that the sureties shall justify and have the same qualifications as bail on arrest, but § 6509, supra, provides the qualifications, viz., that they shall be residents of the state and worth the amount justified to, over and above all debts and liabilities, in property within this state, exclusive of property exempt from execution.

As to the third objection, the statute especially provides that, where there is but one surety, the sum sworn to may be equal to the amount named in the bond.

There seems to be no virtue in the fifth assignment, as the affidavit follows the demands of the statute.

The bond, therefore, being on its face a good bond in all respects, and the sufficiency of the bondsman being a subject which is relegated by the law to the investigation of the superior court, the motion will be denied.

Reavis, C. J., and Fullerton, Mount, White, Anders and Hadley, JJ., concur.  