Our position is that the paper called a bond did not purport to stand for or be bound for "the costs on appeal." It was given simply to stay proceedings, and undertook to pay the judgment of the lower court with the costs incident to that judgment, if the appeal was withdrawn or dismissed; or to pay the amount of any judgment that might be recovered in the district court, with the costs incident to that judgment. See Duffy v. Greenebaum (Cal.),12 P. 74; Duffy v. Greenebaum (on rehearing), 13 P. 323; Perkins v. Cooper (Cal.), 25 P. 411.
The decisions of the supreme court of this state and the upper courts of California and Idaho upon a statute exactly as ours once was may be helpful in pointing out a reason why our statute, in 1912, was amended, and also in aiding us to an interpretation of our present *Page 213 statute. See McConky v. Superior Court, 56 Cal. 83; Ward v. Superior Court, 58 Cal. 519; Edwards v. Superior Court (Cal.),115 P. 649; Jones v. Superior Court (Cal.), 91 P. 505; Wilson v. Doyle (Ida.), 85 P. 928; Libby v. Spokane Valley (Ida.), 98 P. 716.
Our legislature, in 1912 (sec. 5792, Rev. Laws), cleared the matter up very definitely when it stated in plain terms that: "If a stay of proceedings is claimed the appellant must file an additional undertaking, etc.," which, in effect, lines the law of this state up with the decisions of California and Idaho, where they construed the word "or" into the word "and," thereby requiring two separate bonds.
The same identical question, and with a bond before it very similar in terms with the bond now before us, was decided in the case of Weiser River Fruit Co. v. Feltham (Ida.), 175 P. 848. See, also, Hill v. Cassidy (Mont.), 60 P. 811, under a statute very similar to ours.
Sec. 5792, Rev. Laws of 1912, amending sec. 3679, Compiled Laws of Nevada, 1860-1900, provides as follows: "An appeal from a justice's court where no stay of proceedings is claimed is not effectual for any purpose unless an undertaking is filed * * * in the sum of one hundred dollars." By virtue of the amendment, the one hundred dollar undertaking on appeal is required only where no stay of proceedings is claimed.
With respect to a stay bond, provisions for which are found beginning with the second sentence of the statute, the words "the appellant must file an additional undertaking," which were not a part of the old statute, are not used in the sense that another instrument must be filed, but carried the meaning that the undertaking must be in an additional sum such as will equal double the amount of the judgment, and all costs, appealed from, together with the other requirements of a stay bond. If the undertaking is worded so that it covers the costs on appeal, in addition to the necessary requirements as a stay bond, it will be sufficient to perfect the appeal under the provisions of *Page 214 sec. 5792. The statute was undoubtedly amended for the purpose of simplifying the procedure in an appeal from the justice's court, and no effect can be given the amendment except by holding that the undertaking on appeal in the sum of one hundred dollars is not now required.
If it can be determined from the face of the undertaking that it is the intention of the principals to guarantee payment of the costs on appeal, then it certainly is sufficient beyond any doubt. Jones v. Superior Court of Kearn County, 91 P. 505; State v. Brown, 30 Nev. 495.
The case of Duffy v. Greenebaum, 12 P. 74, and 13 P. 323, is not in point, for the reason that sec. 5792 of our Revised Laws of 1912 has changed the law entirely from the section of our statute that was in effect, which was almost identical with the California statute interpreted by that decision.
OPINION This is an original proceeding in prohibition to restrain the respondent court from proceeding with the trial on the merits of a case appealed from a justice of the peace.
In the fall of 1928 F.L. Stevens instituted an action in the justice's court of Argenta township, Lander County, Nevada, against R.E. Norton, this petitioner. Upon the trial the justice of the peace entered judgment against plaintiff, dismissing the action and rendered judgment for the defendant for costs amounting to $30.50. Thereafter the plaintiff, Stevens, gave notice of an appeal from the judgment, and executed a bond in the sum of $161.
After reciting the action of the justice of the peace, the bond is conditioned as follows: "Now, therefore, we, the undersigned, United States Fidelity and Guaranty Company, of Baltimore, Maryland, do hereby *Page 215 undertake and promise, and do hereby acknowledge ourselves bound in the sum of $161.00, that the appellant will pay the amount of the judgment appealed from, and all costs, if the appeal be withdrawn or dismissed, and that he will pay the amount of any judgment, and all costs, that may be recovered against him in the action in the said District Court."
Subsequent to the filing of the transcript with the clerk of the respondent court, the defendant made a motion to dismiss the appeal on the ground that no such bonds were given as conferred jurisdiction upon the district court. This motion was denied, and the court threatened, as alleged, to proceed to try the case unless prohibited from so doing by the judgment of this court.
The statute authorizing the giving of bond on appeal from a judgment of a justice of the peace is section 5792, Rev. Laws, as amended by Stats. 1925, p. 333, which reads in part as follows: "An appeal from a justice's court where no stay of proceedings is claimed is not effectual for any purpose unless an undertaking is filed, with two or more sureties, in the sum of one hundred dollars, for the payment of the costs on the appeal. If a stay of proceedings is claimed, the appellant must file an additional undertaking, in a sum equal to twice the amount of the judgment, including costs, when the judgment is for the payment of money; or twice the value of the property, including costs, when the judgment is for the recovery of specific personal property, and which must be conditioned, when the action is for the recovery of money, that the appellant will pay the amount of the judgment appealed from, and all costs, if the appeal is withdrawn or dismissed, or the amount of any judgment and all costs that may be recovered against him in the action in the district court."
It is the contention of petitioner that it was necessary for the plaintiff in the case mentioned, in taking his appeal, to confer jurisdiction upon the district court to try the case to give not only the one hundred dollar bond mentioned in the first sentence of the *Page 216 section quoted, but an additional bond — a separate and distinct document — as contemplated by the second sentence in the section.
We cannot agree with this contention. Upon the giving of a bond in the sum of one hundred dollars to cover costs on appeal, the district court acquired jurisdiction. The only question is: Does the bond in question cover the costs on appeal? We think it does. In fact, the question is not a new one in this court. In State v. Brown, 30 Nev. 495, 98 P. 871, though a somewhat different situation was presented, the court held that the words "all costs" in the obligation was such a compliance with the statute as to constitute the obligation a cost bond, and that the district court acquired jurisdiction. We think that decision was right, and that it is controlling in this case.
Proceedings dismissed.