Respondent made application to this court for an order requiring the appellant to furnish a new surety on asupersedeas bond filed by him on appeal from a judgment entered against him in the district court of the eleventh judicial district, on the ground that since the giving of such bond one of the sureties thereon had disposed of his property and is now insolvent.
The question as to the power of this court to require an appellant to, furnish a new supersedeas bond as prayed for in respondent's application has not heretofore been presented to or passed upon by this court. This exact question, however, was before the supreme court of California in the case of Macomberv. Conradt, 4 Cal. Unrep. 723, 37 P. 382. In the course of that opinion the court uses the following language: "No statute has been called to our attention which authorizes us in making the order here prayed for, and we know of none. For this reason, the motion and application is denied." At the time of this decision the statutes of California were practically identical with our present statutes providing for the giving of a supersedeas bond. We likewise have no statute authorizing this court to require an appellant to furnish a new supersedeas bond in this court. From my investigation of the question here presented I am not prepared to concur in the majority opinion that the appellate court has the inherent power to compel the appellant to furnish a new supersedeas bond, or that the weight of authority and the better rule is out of harmony with the holding in Macomber v. Conradt, supra. An examination of the following authorities shows that they support the rule announced in that *Page 236 case: Miller v. Heard, 7 Ark. 50; Davies v. Monroe Water Worksetc. Co., 107 La. 145, 31 So. 594; Surget v. Stanton, 10 La. Ann. 318; Moore v. Olin, 6 Mich. 328; Perrin v. Kellogg,37 Mich. 316; Kreling v. Kreling, 116 Cal. 458, 48 P. 383;Boyer v. San Francisco Superior Court, 110 Cal. 401,42 P. 892; Horstman v. Little, 98 Tex. 342, 83 S.W. 679; Stewart v.Wilcox, 1 Lea (Tenn.), 81; State v. Judge, 17 La. 433; DeGruyv. Aiken, 43 La. Ann. 789, 9 So. 747. The great weight of authority would seem to be that an appellate court is without the power to compel an appellant to furnish a new supersedeas bond in the appellate court.
Examination of some of the authorities cited in the majority opinion discloses the fact that they refer to legislative authority empowering appellate courts to make such orders. Conceding that upon occasion courts do legislate, no urgent necessity would seem to exist calling for the exercise of such power in this instance. To my mind the wiser course would be to follow the rule of the Macomber v. Conradt case until the legislature by specific enactment clothes this court with the power to require, upon proper showing, that an appellant furnish a new supersedeas bond.
Finding myself unable to concur with the views expressed by the majority of the court in the opinion written by Mr. Justice Givens, I dissent therefrom. *Page 237