I dissent. I concur in the general thesis of the prevailing opinion that the second, or amended, undertaking was sufficient to have formed the basis for an action against the sureties; and that the District Court might have refused to dismiss the appeal, and ordered a new undertaking filed. I arrive at this conclusion, however, on a somewhat different rationale than that employed by the CHIEF JUSTICE. I dissent from the order made by the prevailing opinion. Since what seems to me the logical result of the rationale of the main opinion would ultimately lead the courts, the profession and the parties litigant into a Stalingrad from whence there could be no advance, no retreat, but only extermination of orderly procedure and legal rights, I must voice my protest against the slaughter. The administration of justice, in order that we may be a government of laws and not of men, must be bottomed upon orderly procedure, resting on certain basic and controlling principles, with which the courts should exact a reasonable compliance and conformance. The right to resort to the courts is guaranteed to all men. Art. I, Sec. 11, Utah Constitution, but only when one enters by the door. The courts should not be open to such as seek to enter through the back window. The path of entry has been defined and blazed by statute and rules and decisions of the courts. The guide posts and traffic signs are plainly visible, and the perpetuity of legal rights and justice require reasonable conformance to the traffic rules of the legal road.
The rules governing appeals from city courts to the District Court are clearly set out in Chap. 77, title 104, U.C.A. 1943, which deals with appeals from Justices' courts. Section 20-4-18 U.C.A. 1943, makes these provisions applicable to city courts. The chapter provides that a notice of appeal must be served and filed within thirty days after notice of entry of judgment, 104-77-3, that, within five days after filing notice of appeal an undertaking must be filed for the payment of costs on appeal, and if a stay of proceedings is *Page 389 desired, the undertaking must be for twice the amount of the judgment plus one hundred dollars for costs, and be approved by the court wherein filed, 104-77-6; that "upon filing the notice of appeal and the undertaking * * * and the payment of the fees of the justice * * *" the justice shall within five days transmit the record and the judgment roll to the District Court, 104-77-5. This is the course by which an appeal should in due order proceed. But the service and filing of the notice of appeal within the five day period is the only step that is jurisdictional. 104-77-9; Leavitt v. Couturier, 82 Utah 256,23 P.2d 1101; Greenwood v. Bramel, 54 Utah 1, 174 P. 637. In the instant case the notice of appeal was timely served and filed, and when the papers were docketed in the District Court, that court had jurisdiction. The statute last cited prescribes three grounds upon which the District Court may on motion dismiss an appeal. The second and third grounds only could have any application to this case. They are that the undertaking was not filed within five days after the notice of appeal; and that a new undertaking was not filed when ordered by the court. Implicit in these grounds are two other propositions: that an undertaking may be filed after five days, and that where an undertaking is insufficient, a new one may be filed. We held in Levy v.District Court, 61 Utah 519, 215 P. 993, that if the court could order a new undertaking filed, one could be filed without an order. But the statute under discussion provides that the District Court may on motion of respondent, penalize an appellant for not conforming with the traffic rules on the legal highway by driving too slowly and erratically. Since such action is in thediscretion of the District Court on a record before it, which we have not before us, how can we say that court abused its discretion?
Let us examine now the situation in the case before us. The first undertaking, filed within the five day period, was captioned in the City Court of Murray City, and entitled by the names of the parties. We must so conclude from the statement in the petition that appellant filed in *Page 390 the city court an undertaking on appeal, conditioned as required by law for the payment of costs on appeal. The answer admits that an instrument labeled an "undertaking" was filed. Respondent below raised no objection to the form or sufficiency of this undertaking except as to qualification of the sureties, and demanded that they justify. In the motion to dismiss, made six months later he only questioned the undertaking as insufficient on the grounds that: (a) Plaintiff was not named as obligee in the bond; (b) that the sureties were bound for no particular purpose. If the undertaking were not properly captioned by court and parties, it hardly avails the plaintiff now, since he never raised the question below. From his failure to raise the question in the District Court we must assume that the undertaking was properly captioned, or that the judgment creditor waived the failure to properly caption the same. The second undertaking, designated as Amended Undertaking is pleaded in full in the petition and shows it properly captioned as to court and parties.Slaughter v. Morton, Tex. Civ. App. 195 S.W. 897; Bauer v.Crow, Tex. Civ. App. 171 S.W. 296; 4 C.J.S., Appeal and Error, § 539, p. 1002; 3 C.J. p. 1148; Jones v. Richard,1 La. App. 214; Dore v. Covey, 13 Cal. 502; Ives v. Finch,22 Conn. 101; Van Deusen v. Hayward, 17 Wend., N.Y., 67; Virginia F. M. Ins. Co. v. New York Carousal Mfg. Co., 95 Va. 515,28 S.E. 888, 40 L.R.A. 237; 3 C.J. p. 1199 n. 44; 4 C.J.S., Appeal and Error, § 573, p. 1038; In re Mead's Estate, 145 Or. 150,26 P.2d 1103; Shearman v. Cooper, 294 Ill. 314, 128 N.E. 559;Levy v. District Ct., supra.
There is a more serious question as to the first undertaking. As indicated by the prevailing opinion, the terms, purposes and conditions of the undertaking were set forth only by reference to a particular section of the statute. The section specifically incorporated in the undertaking is "Section 104-41-7, R.S.U. 1933." This section pertains to undertakings on appeal from the District Court to the Supreme Court. Since there could be no affirmance of the judgment, *Page 391 or damages awarded by the Supreme Court, or costs incurred by an appeal to the Supreme Court the sureties thereon could incur no liability under this bond. We held in Vander Schuit v.Daniels, 78 Utah 135, 139, 1 P.2d 966, that the liability of the sureties is strictissimi juris; that they are liable only within the definite conditions of the undertaking. A bond for an appeal to a court other than that to which an appeal is taken is insufficient. McAulay v. Tahoe Ice Co., 3 Cal. App. 642,86 P. 912; Smith v. Walker, 22 Fed. Cas. page 697, No. 13, 123a, Hempst. 289; Wetumpka C.R. Co. v. Bingham, 5 Ala. 657 (on appeal from justice's judgment); Sanitary Laundry Co. v.People, 212 Ill. 300, 72 N.E. 434; Merserole v. Merserole,13 N.J.L. 239; 4 C.J.S. Appeal and Error, § 539, p. 1003; 3 C.J. 1149. Courts of appeal cannot consider a case for which an appeal bond was made for an appeal to the Supreme Court. Keaton v.Boughton, 83 Mo. App. 158; Ft. Worth D.C.R. Co. v. Henry, Tex. Civ. App. 88 S.W. 399; Turner v. Southern Pine LumberCo., 16 Tex. Civ. App. 545, 40 S.W. 1078; Tucker v. State,11 Md. 322. There are a number of cases which hold that such error in the undertaking does not deprive the court to which the appeal is taken of jurisdiction. Pershing v. Wolfe,8 Colo. App. 82, 44 P. 754. Those cases are not in point here, since the question here is not a matter of jurisdiction but one of discretion. It appears from such cases that jurisdiction attaches regardless of the bond, and that amendment of the bond could have been allowed. This is the definite rule in this state by virtue of statute, 104-77-9, U.C.A. 1943. The District Court could undoubtedly have allowed an amendment of the undertaking or permitted the filing of a new one had such request been made. When the court then permitted the Amended Undertaking to be filed, that was equivalent to an order to that effect. Levy v.District Ct., supra. It follows therefore that the first undertaking was insufficient, but from what is said in the opinion of the CHIEF JUSTICE, the amended undertaking was sufficient to sustain an action against the sureties if the *Page 392 bond were accepted and relied upon by the judgment creditor. It seems to be the better reasoned rule that where because of the bond the judgment debtor has obtained the benefits of an appeal, a stay of execution and a retrial of the cause, and the judgment creditor relied upon the bond through all the proceedings, the sureties are not permitted to evade liability because of irregularities or informalities in the bond. But it does not follow therefrom that the judgment creditor may not question the sufficiency of the bond, either as to form or substance, before trial or disposition of the appeal. The reasons the sureties should not be permitted to evade liability, are no reasons why the judgment creditor should not be permitted to insist on a bond clearly good as to form and substance. The judgment debtor seeks to enter the higher court. Let him enter by the door and not by the back window or the basement coal chute. Here the judgment creditor twice notified the judgment debtor that the sureties were not satisfactory and demanded they justify before the court. The judgment debtor blandly ignored both proper demands. The judgment creditor then moved to dismiss the appeal because the sureties failed to justify; because the form and substance of the bond were irregular and insufficient; and he feared he could not recover against the sureties under the rulings of this court inVander Schuit v. Daniels, supra. That such doubt was not unreasonable appears from the fact that the District Court did hold the bond not good as against the sureties and also from the method used in the prevailing opinion to arrive at the conclusion that the sureties would have been held under the amended undertaking. He should not be required to accept without complaint a very evident lawsuit of doubtful results in lieu of an undertaking provided by statute. Even then the judgment debtor did not offer a new or proper undertaking, nor did he have the sureties justify. The trial court may well have concluded that the judgment debtor was "playing horse" with the creditor and *Page 393 the court. To my mind the exercise of the court's discretion was very sound.
Even if this court should not approve of the judgment of the District Court, the ruling would simply be error, easily and properly reviewable by appeal, as a plain speedy and adequate remedy, and we should not permit resort to certiorari and mandamus in aid thereof. Hoffman v. Lewis, 31 Utah 179,87 P. 167. I am unable to see how the trial court acted in excess of its jurisdiction in erroneously construing the undertaking and in concluding there was in effect no valid undertaking filed. It was properly within its jurisdiction in dismissing the appeal. If in error, the remedy by appeal to this court was adequate. Kyrimes v. Kyrimes, 45 Utah 168, 143 P. 232.