#### Aultman, Miller & Co. v. Nelson *et al.*

After judgment against defendant in a justice’s court, he filed an undertaking that contained all the requirements Of an appeal bond, under Comp. Laws, § 6133, togethefi with additional requirements of the section for a stay of proceedings. *Held,*that the undertaking was effectual as an appeal bond, the additional matter being rejected as surplusage.

(Opinion filed December 17, 1898.)

Appeal from circuit court, Brookings county. Blon. Julian Bennett, Judge.

Action in a justice court by Aultman, Miller & Co., a corporation, against Andrew Nelson and Niels. Jenson. From a judgment for plaintiff, defendant Jenson appealed to the circuit court; and from an order therein overruling a motion to dismiss the appeal, plaintiff appeals.

Affirmed.

The facts are stated in the opinion.

*Jenláns & Farrell,*for appellant.

*Matheius & Murphy,*for respondent.

Fuller, J.

This appeal from an order overruling a motion to dismiss an appeal to the circuit court from a judgment of a justice of the peace, which, including costs, amounts to $108.88, presents the sufficiency of an undertaking in the sum of $220, conditioned “that the appellant will pay the amount of the judgment appealed from, and all costs on said appeal, if the appeal be withdrawn or dismissed, and a judgment is rendered against the appellant in the appellate court, and will pay the amount of any judgment and all costs that may be recovered against said appellant in the action in the circuit court of Brookings county, South Dakota, not exceeding the sum of two *339hundred twenty dollars.” The language of the statute is that: “An appeal from a justice’s court is not effectual for any purpose, unless an undertaking be filed, with two or more sureties, in the sum of one hundred dollars, for the payment of the costs on appeal; or, if a stay of proceedings be claimed, in a sum equal- to twice the amount of the judgment including costs, when the judgment is for the payment of money; * * * and 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recovery of money, that the appellant will pay the amount of the judgment appealed from and all costs, if the appeal be withdrawn or dismissed, or the amount of any judgment and all .costs that may be recovered against him in the action in the circuit court. * * *>• Comp. Laws, § 6133. That this undertaking, in a sum equal to twice the amount of the judgment, including' costs, and “containing all the requirements of an appóal undertaking and all the additional requirements of a stay undertaking,” with the necessary sureties, was duly filed, is expressly conceded; and appellant’s position seems to be that, if a stay of proceedings is claimed, two separate undertakings must be provided, and that the circuit court was without jurisdiction, because the foregoing is not an undertaking on appeal, but merely to stay proceedings. As the jurisdiction of the circuit court is the only matter essential to a determination of this case, and the undertaking confessedly contains all that is required to make an appeal effectual, we assume, but by no means decide, that the additional matter is unauthorized, and, looking to substance rather than form, reject as surplusage the more onerous conditions, and hold the undertaking on appeal valid and effectual. The order appealed from is affirmed.