Farley

This action is on a bond executed by Moran Bros, as principals, and J. W. Doyle and J. C. Wimple as sureties. The principals were never served with summons, and judgment was rendered against the sureties only. From that, and an order refusing a new trial, the defendants bring this appeal.

The bond was given under a proceeding for the condemnation of land for a public use; that is, for the building of a railroad. Those proposing to condemn the land were not associated as a corporation, but as copartners. It is provided in section 1244, Code of Civil Procedure, what parties may file a complaint in such an action; and the principals of the bond involved here are such parties as are included in the provisions of that statute. In section 1248, among other matters which must be done by the court, jury, or referee in assessing the damages by way of compensation to the owner of the land sought to be taken for a public use, is this: “That, if the property sought to be condemned be for a railroad, the cost of good and sufficient fences along the line of such railroad, and the cost of cattle-guards -where fences may cross the line of such railroad,” must be ascertained and assessed by…