Swan v. Hill

This was an action by John Hill and others against H. C. Herrick and others to establish rights in the waters of San Pedro river. From the decree entered by the district court, defendant Swan, trustee, appealed to the supreme court of the territory. The appellees moved to dismiss the appeal for defects in the appeal bond. The supreme court of the territory granted the motion. Swan, trustee, appeals.

This was an action brought by John Hill, A. B. Wild, S. B. Curtis, and Samuel Summers, in the district court of Cochise county, against H. C. Herrick and others, including the Boston Mining & Reduction Company, to establish plaintiffs' alleged prior right to the use of the waters of the San Pedro river for irrigation purposes, and to restrain defendants in respect thereof. The defendant company having, previously to the commencement of the action, conveyed its property to Swan, trustee, the latter was made a defendant, as were numerous others averred to be interested in the use of the waters of the river. The case was tried by the court, a jury being waived, and resulted in certain findings of fact, and a decree adjudging priority of right to the waters of the river-First, to two of the defendants; second, to plaintiffs; third, fourth, and fifth, to various named defendants, respectively; and that the defendant company, and those claiming under it, or the trustee, were entitled to none of the waters for purposes of irrigation as against any of the parties until the other rights as established were satisfied. The cause was dismissed as against many defendants without prejudice. Motion for new trial was made and overruled, and Swan, trustee, appealed to the supreme court of the territory, and tendered a paper as and for a bond, which was approved and filed by the clerk of the court, and was, omitting the signatures, as follows:

'In the District Court of the First Judicial District of the Territory of Arizona in and for the County of Cochise.

'John Hill et al., Plaintiffs, vs. H. C. Herrick et al., Defendants.

'Undertaking for Costs and Damages on Appeal.

'Whereas, Robert T. Swan, trustee, one of the defendants in the above-entitled action, is about to appeal to the supreme court of the territory of Arizona from a judgment and decree rendered against him in said action in the said district court, and in favor of the plaintiff, to the effect that he (the said defendant) represents a corporation which, under its charter, cannot take the waters of the San Pedro river for the irrigation and cultivation of its lands, and for costs of suit, taxed at $_____, and entered on the 21st day of October, A. D. 1889:

'Now, therefore, in consideration of the premises and of such appeal, we, the undersigned residents of the county of Cochise and territory of Arizona, do hereby jointly and severally undertake and promise, on the part of the appellant, that the said appellant will pay all damages and costs which may be awarded against him on the appeal, not exceeding three hundred dollars, to which amount we acknowledge ourselves jointly and severally bound. Witness our hands and seals this 16th day of November, 1889.'

The appeal was docketed in the supreme court, and continued to an adjourned term. when a motion to dismiss it, because, among other reasons, the appeal bond did not comply with the statute of Arizona in that behalf, was made.

Section 859 of the Revised Statutes of Arizona provided: 'The appellant or plaintiff in error, as the case may be, shall execute a bond, with two or more good and sufficient sureties, to be approved by the clerk, payable to the appellee or defendant in error, in a sum at least double the probable amount of the costs of the suit of both the appellate court and the court below, to be fixed by the clerk, conditioned that such appellant or plaintiff in error shall prosecute his appeal or writ of error with effect, and shall pay all the costs which have accrued in the court below, or which may accrue in the appellate court.' Rev. St. Ariz. 1887, c. 20.

The motion was sustained upon that ground, the appeal dismissed with costs, and Swan, trustee, brought the case to this court.

A. T. Britton and A. B. Browne, for appellant.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.