#### American Cement Machine Company, Appellant, vs. City of Madison, Respondent.

*April 12*

April *29, 1913.*

*Municipal corporations: Claims: Appeal from disallowance: Sufficiency of bond.*

1. Where a city charter requires one taking an appeal from the disallowance of a claim by the council to execute “a bond to the said city with sufficient surety . . . conditioned for . . . the payment of all costs that shall be adjudged against the appellant,” a bond executed for a definite sum, if otherwise in accordance with the requirement, is a substantial compliance with the charter and sufficient to confer jurisdiction on the appellate court, provided the sum for which it is given is large enough to secure payment of any judgment for costs which, in the ordinary course, the city might obtain.

2. If, in such a case, an unusual contingency arises causing an amount of costs in excess of the bond to be incurred, recoverable by the city, the court, under sec. 4281m, Stats., may protect the city by requiring the appellant to give a new bond.

Appeal from an order of tbe circuit court for Dane county: E. Ray Stevens, Circuit Judge.

*Reversed.*

Tbis is an appeal from an order dismissing an appeal taken' by tbe *American Cement Machine Company*from tbe disal-lowance by tbe common council of the city of *Madison*of a claim bled by tbe plaintiff with tbe city clerk of tbe city. Tbe appeal from tbe disallowance by tbe city council was taken, by tbe service of a proper notice, to tbe circuit court for Dane county, and a bond was filed with tbe city clerk to cover tbe costs of tbe action.

Tbe city attorney moved for dismissal of tbe appeal upon tbe ground that tbe bond was not sufficient under the provisions of tbe city charter of tbe city of *Madison.*Tbe charter provision governing such an appeal is sec. 28 of cb. VII of tbe charter 'and reads as follows:

“When any claim of any person against tbe city shall be disallowed in whole or in part by the common council, such *445person may appeal from tbe decision of tbe council disallowing sucb claim to tbe circuit court of tbe county of Dane, by causing a written notice of sucb appeal to be served on tbe clerk of said city witbin twenty days after tbe making of sucb decision, and executing a bond to tbe said city with sufficient surety, to be approved by tbe said clerk, conditioned for tbe faithful prosecution of sucb appeal and tbe payment of all costs that shall be adjudged against tbe appellant by tbe court. . . .”

Tbe part of tbe bond executed and filed in tbe action by tbe claimant which is material to this appeal is as follows:

“Know all men by these presents that we, tbe *American Cement Machine*Company, principal, and tbe Equitable Surety Company, surety, 'are held and firmly bound to tbe city of Madison> a municipal corporation of Wisconsin, in tbe sum of $500, lawful money of tbe United States, to be paid to tbe said city of *Madison*or its assigns, for which payment well and truly to be made, we bind ourselves and our assigns, jointly and severally, firmly by these presents. Sealed with our seals and dated this 2d day of October, 1912. . . .

“Now tbe condition hereof is sucb that if tbe said *American Cement Machine Company*shall faithfully prosecute such appeal and pay all of tbe costs that shall be adjudged against tbe appellant by tbe court on said appeal, then this obligation shall be void, otherwise of force.”

Tbe lower court dismissed tbe appeal and tbe action on tbe grounds that tbe appeal bond did not comply with tbe requirements of sec. 28 of cb. VII of tbe city charter. This is an appeal from tbe order dismissing sucb appeal and tbe action.

For the appellant there was a brief by *Welton &*Marks, and oral argument by *C. E. Marks.*

*William Ryan,*for the respondent.

Siebecker, J.

The appeal bond is assailed for want of its compliance with tbe charter provision prescribing tbe conditions for appealing from the disallowance of a claim against tbe city. Tbe charter provisions conferring on tbe *446claimant tbe right of appeal from the disallowance of a claim against the city require the service of a written notice of appeal on the city clerk and the execution of a bond with sureties conditioned for a faithful prosecution of the appeal and “the payment of all costs that shall be adjudged against the appellant by the court.” The appellant executed a bond in the penal sum of $500 which was approved by the city clerk.

It is asserted that this bond is fatally defective in that the liability of the obligation is limited to $500, which it is claimed may prove insufficient to pay all costs for which appellant may be adjudged to be liable in prosecuting this appeal, and that the bond for this reason is not a substantial compliance with the charter provision. The charter specifically prescribes that the obligation shall be a bond. In its ordinary signification this means that a certain sum is to be specified expressing the obligation of the parties. The question naturally arises, Is a bond for a definite sum, like the one in question, within the contemplation of the charter provision, and, if so, is this bond a substantial compliance therewith? A bond, as ordinarily understood, implies that the obligors bind themselves to pay a certain sum upon condition that it shall be payable if it is breached. If the charter provisions permit that the bond required may be executed for a certain sum, then this bond is sufficient. In the case of *Conover v. Washington Co.*5 Wis. 438, an appeal bond executed in the sum of $100 and conditioned that the claimant, who had appealed from the disallowance of a claim against the county to the circuit court, should faithfully “prosecute his said appeal and pay all costs that shall be adjudged against him,” was held to comply with a statute requiring an appeal bond upon the same terms as the charter provisions in this case prescribe. The circuit court in that case dismissed the appeal for insufficiency of the bond; but on appeal to this court it was held that it substantially met the calls of the statutory requirements and was held to be sufficient. The de-*447cisión, obviously, was based on tbe principle that if such a bond was sufficient in amount to secure payment of all costs that would ordinarily and customarily be incurred by the county in such litigation, then it was a substantial compliance with the statute and thus conferred jurisdiction on the circuit court.

Can the bond in the instant case be so considered ? As we have seen, it conforms to the statutory language in its conditions and no objection exists against it in that respect. The penal amount is fixed at $500. In the ordinary course of prosecuting this appeal this sum is sufficient to pay all costs to which the city would be entitled in the circuit court if appellant is unsuccessful in the prosecution of its claim. Erom the nature of the claim the amount of the bond will practically assure the city of the payment of any judgment it may obtain for costs in the circuit court. Under the circumstances a bond in that amount is a substantial compliance with the city charter and is sufficient to confer jurisdiction of the claim on the circuit court. It is suggested that some unusual exigencies might arise in the prosecution of the claim causing an amount of costs in excess of the bond to be incurred by the city and recoverable in the action. When such a contingency arises, the court is given power to inquire whether the bond has become insufficient, and, if found necessary, it can protect the city by requiring the appellant to give a new bond to indemnify it against any such threatened loss in the prosecution of the claim. See sec. 4281m, Stats. It is considered that the bond in question complies with the charter provisions; that it is sufficient; and that the court erred in dismissing the appeal and the action.

*By the Court.*— The order appealed from is reversed.