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The omission of the allegation of being worth twice the amount, etc., is fatal ; 79 but the omission may be allowed to be cured by amendment. 80
It is not necessary for the affidavit to allege that the affiant is not an attorney or officer incapacitated from being surety.81
The affidavits of the sureties must be subjoined to and filed at the same time as the undertaking.82 An affidavit of another person, as to the pecuniary reputation of the surety, is not to be accepted in lieu of the affidavit of the surety.83
29 Necessity for approval.]— The general rule is that the bond or undertaking 'must be approved by the court, before which the proceeding is taken, or a judge thereof, or the judge before whom the proceeding is taken.84
There are exceptions to the statute in the case of the undertakings of bail,85 and undertakings of claim and delivery,86 which are to be approved by the sheriff, and undertakings on appeal to the Court of Appeals and the Appellate Division which do not require approval unless the sureties are excepted to.87
30. — by clerk.]-A statute requiring a bond or undertaking to be approved by the clerk has been deemed to impose only the ministerial cr clerical duty88 of seeing that the instrument is fair and complete in form; though it would be otherwise of a requireunent to give security approved by the clerk,89 because this refers to the substance of the protection to be given.
79 Lytle v. Lytle, 90 N. C. 647.
82 N. Y. Code Civ. Pro., $ 812; Van Wezel r. Van Wezel, 3 Paige, 38; Alberson v. Mahaffey, 6 Oreg. 412.
8% Morphew v. Tatem, 89 N. C. 183; Harshaw v. McDowell, Id., 181. 84 N. Y. Code Civ. Pro., § 812. 85 N. Y. Code Civ. Pro., 8 576. 86 N. Y. Code Civ. Pro., & 1699, applied in Behr v. Hall, 2 Monthly L. Bul. 6. 87 N. Y. Code Civ. Pro., 88 1335, 1351. 88 Daniels v. Miller, 8 Colo. 542, 9 Pac. Rep. 18. Where the parties had fulfilled their duty, the failure of an officer to require justification was held not to invalidate the undertaking, in St. Louis, etc., R. R. Co. v. Wilder, 17 Kans. 239.
Where an undertaking was approved by clerk of commissioners, when it should have been by the county clerk, a new undertaking was allowed to be filed, in St. Joseph, etc., R. R. Co. v. Orr, 8 Kans. 419.
89 McLaren . Charrier, 5 Paige, 530. N. Y. Gen. Rule No. 5 provides that " whenever a justice or other officer approves of the security to be given in any case, or reports upon its sufficiency, it shall be his duty to require personal sureties to justify, or, if the security offered is by way of mortgage on real estate, to require proof of the value of such real estate."
31. — by court or judge ex parte.]—A statute or rule of court requiring approval of a bond or undertaking by a court of record, or a judge of such a court,90 imposes a judicial duty. The court or judge is not a mere clerk of the files. Such a statute is to be understood as meaning that the party must obtain judicial approval before he acts on the fact of having given security. The duty of the court or judge depends on the same principles as where other applications are made on written proofs, or on production of a witness, as the case may be. Adequate evidence makes it the duty of the court to act; but what appears on the face of the papers is not conclusive; the testimony or the witness may be scanned, and the duty of approval depends on conviction of the sufficiency of the offered evidence.
But he must here, as in every other case, act on the evidence befcre him, and not on personal knowledge of facts of which he cannot take judicial notice, nor on private reasons.91
Under such a statute or rule of court, approval is essential,92 unless it be waived, which may be done by an agreement to accept
90 Under Code Crim. Pro., $ 851, which requires an undertaking on appeal to be approved by the magistrate, the Court of Sessions have not power to accept a new undertaking in place of a defective one. Ramsey v. Childs, 34 Hun, 329.
01 O'Connor v. Moschowitz, 48 How. Pr. 451 (holding it error for a city district court judge to reject a surety who had duly justified, because of a private opinion that he was unfit).
92 Beach v. Southworth, 6 Barb, 173, 1 Code Rep. 99.
Jacoby v. Drew, 11 Minn. 408, holding even that an action would not lie upon the undertaking because not having been approved, the attachment issued on it did not give jurisdiction. But this goes too far. The objection does not avail the sureties, if the process for which the undertaking was signed was issued upon the faith of it. Bennett v. Mulry, 6 Misc. 304, 26 N. Y. Supp. 790.
The act of the judge or court in administering the oath, held not approval, in Gross 1. Bouton, 9 Daly, 25. Issuing process on the undertaking, held equivalent to approval, in Levi 1. Darling, 28 Ind. 497.
Statement in a case on appeal, that a bond had been filed and approved, was held a waiver of the right to object to the sureties, in Hancock v. Bramlett, 85 N. C. 393.
Where the record was that the bond was neither approved nor disapproved, it was inferred that the sureties were sufficient, but that the court expressed no opinion, and that the statute was satisfied sufficiently to give jurisdiction. Rawson v. Dofner (Mass, 1886), 3 New Engl. Rep. 195.
Approval was implied on silent record, in Silver v. Ladd, 6 Wall. 440.
without justification.93 An omission to obtain approval may be allowed to be supplied by amendment.94
The presumptions are all in support of the propriety of the act of a judge who has approved such a security.95
32. — not to be delegated.], This judicial function cannot be delegated to the clerk as such ; 36 but the court,97 as distinguished from a judge out of court, has power to refer the question to a referee (and the clerk may act as referee when not precluded by la w98).
33. Certificate of approval.] — The certificate of approval must be indorsed upon the bond or undertaking:99 It is usually indorsed by the judge presiding. But unless his signature is expressly required (as in New York) an approval by the court is sufficiently shown prima facie by a statement of approval, indorsed or underwritten by the clerk in open court, because the direction of the court may be presumed.?
The certificate of approval need not recite the qualifications if they appear in the affidavit. If they do not, it ought not to be granted.
93 Gopsill v. Decker, 4 Hun, 625, 67 Barb. 211.
Under a statute providing that security might be waived by written consent, held, that the appellee's counsel's signature of the case settled for appeal, did not waive lack of justification in the undertaking given on the part of the appellant. McMillan v. Nye, 90 N. C. 11.
9+ Beach v. Southworth, 6 Barb. 173, 1 Code Rep. 99. Augrich v. McOwen, 4 Monthly L. Bul. 66 (allowing amendment, to defeat motion to vacate in. junction); and see paragraph 51, p. 473 (below).
95 Jerome v. McCarter, 21 Wall. 17.
96 So held under U. S. R. S., $ 1000, requiring a judge or justice signing a citation on a writ of error, to “ take good and suflicient security.” O'Reilly v. Edrington, 96 U. S. 724; National Bank v. Omaha, Id., 737; U. S. v. Hodge, 3 How. (U. S.) 534; Villabolos v. U. S., 6 id. 81; Chaffee v. Hayward, 20 id. 209.
97 N. Y. Code Civ. Pro., $ 827 and $ 1015, last clause.
08 As in case of clerks, deputies, and assistants in courts of record in New York and Kings counties. Id., § 90.
9. N. Y. Code Civ. Pro., $ 812.
An indorsement of approval on the outer one of several undertakings, fastened together, held (in an action on the undertakings), presumptively applicable to all. Hooker v. Townsend, 1 How. Pr. (N. S.) 107.
Where the law does not require approval or allowance to be indorsed upon the instrument, or otherwise, in any particular form, a recital in the order granted thereon, that the bond has been approved, is enough, and the court may, if desired, allow an indorsement of approval to be made nunc pro tuno. Anderson v. Kanawha Coal Co., 12 W. Va. 526.
1 U. S. v. Evans, 1 Crim. L. Mag. 600, 604; s. c., 12 Chic. Leg. N. 271. 2 Coithe v. Crane, 1 Barb. Ch. 21.
Omission to indorse does not necessarily discharge the sureties. State . Hays, 2 Oreg. 314; Griffin v. Wallace, 66 Ind. 410.
34. Vacating the approval.]— The court has power to vacate its approval when it is found to have been obtained by fraud upon the court, and may even refuse to accept a new security.*
III. FILING AND SERVING. 35. Filing.] It seems to be a sound general principle that an undertaking or bond given as a condition of taking any legal proeeeding, should be filed with the clerk of the court requiring it, unless otherwise directed. In drawing an order for the giving of a bond, it may be better to prescribe the filing, if this is intended. Filing, if prescribed, is a good delivery,6 and an undertaking required by statute to be filed is not completely executed until so filed;? yet, while it may assure the preservation of the security, it may embarrass the proving of it, in an action on it, without the jurisdiction.s
Sending to the clerk, but omitting to send his fee for filing, for which reason he refuses to file it, is not effectual as filing.'
By the New York statute,10 a bond or undertaking required to
But approval indorsed does not amount to authentication of execution by one who is named as a surety in the body of the instrument, but has not signed. Ford v. Albright, 31 Ohio St. 33.
3 Railroad Co. v. Schutte, 100 U. S. 644 (bond in which “ purchasable sureties” justified by pretext of having had assets temporarily transferred to them for the purpose).
4 ld. The vacatur and refusal here was by the appellate court, but there can be no doubt that the court imposed upon, though it be the court below, may exercise the same power, at least before the case has gone before the appellate court, or afterwards by its leave.
5 Rice v. Whitlock, 15 Abb. Pr. 419 (filing implied in a requirement to execute).
Expressly prescribed by N. Y. Code Civ. Pro., § 816 (as to all bonds required by that Code).
6 Holmes v. Ohm, 23 Cal. 268 (averment of filing, a sufficient averment of delivery).
Dore v. Covey, 13 id. 502, 509 (evidence of filing, etc., and actual stay, sufficient evidence of delivery).
Selden v. Del. & H. Canal Co., 29 N. Y. 634 (holding that the filing of a bond with the county clerk for payment of damages assessed, was a sufficient acceptance thereof by the plaintiff to entitle it to be received in evidence in an action against the company for damages to land, although the statute did not prescribe filing).
But service of a copy is often required in addition, as in case of provisional remedies.
7 Paul . Cragnas (Nev., 1900), 59 Pac. Rep. 857, 47 L. R. A. 540.
8 Shillito v. Robbins, 7 Wkly. Cin. L. Bul. 74, citing Van Alstyne v. Commercial Bank, 4 Abb. Ct. App. Dec. 449.
9 Boyd v. Burrel, 60 Cal. 280; and see paragraph 6, p. 56 of this volume.
Filing - when incomplete, and withdrawing to complete the execution, not filing. Smith v. Reeves, 85 N. C. 594. 10 N. Y. Code Civ. Pro., 88 816, 1307.
be given by the Code of Civil Procedure, must be filed with the clerk of the court; except where in a special case a different disposition thereof is directed by the court or prescribed in the Code of Civil Procedure.
And, except when otherwise provided by law, it is the duty of the attorney presenting or procuring such a bond or undertaking, to forthwith file it with the proper clerk, and in case it shall not be so filed, the opposite party is at liberty to move the court to vacate the proceedings as if no bond or undertaking had been given."
The clerk is required by a general rule in New York to keep an index of all such securities filed with him, stating the details affecting each.12
Omission to file does not impair the right of action on the instrument,13 if it has been used as the basis of a court proceeding.
36. Tardy filing.]—Where there has been a failure to file a hond or undertaking within the prescribed time, the omission should be supplied by a subsequent filing, in order to anticipate any motion to vacate the proceedings for such failure; and, except in those cases mentioned in the next paragraph, such tardy filing will generally suffice, and may save costs of such a motion, even after it has been noticed, provided prompt notice of such filing is given to the moving party, and a waiver of the motion is sought.94
37. Relief from neglect to file.]—Except in those cases where the filing of security is a condition without which the court does not acquire jurisdiction, a party having neglected to give a required undertaking, 15 or who has given one which is defective, or lacks proper authentication or sureties' affidavits of sufficiency, 16
11 N. Y. Gen. Rule No. 4. 12 N. Y. Gen. Rule No. 7.
13 Smith v. Meegan, 122 Mass. 6 (sustaining action, though bond to dissolve attachment was not filed within ten days after approval, as required by the statute).
14 Leffingwell v. Chave, 5 Bosw. 703, 10 Abb. Pr. 472, 478, 19 How. Pr. 54 (where an undertaking on injunction was filed after motion to vacate for failure to file in time, but no notice was given of such filing).
15 Millbank v. Broadway Bank, 3 Abb. Pr. (N. S.) 223 (motion for leave to file undertaking nunc pro tunc, granted).
Leffingwell v. Chave (above), (delay to file undertaking on an injunction till after notice of motion to vacate).
Russell v. Bartlett, 9 Wis. 556 (omission of undertaking on appeal); S. P., Carmer 1. Evers, 80 N. C. 55.
16 Mills v. Thursby (No. 8], 11 How. Pr. 129 (imperfect justification of undertaking on appeal).