86 P. 270 | Idaho | 1906
This cause was before this court ou appeal at its 1906, February term. Counsel for respondent moved to dismiss the appeal, which motion was confessed by counsel for the appellant, and the appeal was, on the thirteenth day of February, 1906, dismissed without prejudice to another appeal. Another appeal has been taken, and counsel for respondent now moves to dismiss the appeal on two grounds: (1) That no sufficient undertaking on appeal has been filed herein; (2) That at the time this appeal was taken, to wit, on the thirteenth day of February, 1906, the district court had no jurisdiction over said case, for the reason that it had been theretofore appealed to the supreme court, and the remittitur from said court had not been filed in the district court, and was not filed until the fifteenth day of February, 1906.
We will first dispose of the second contention. It appears from the records of this court that the first appeal in this case was dismissed without prejudice to another appeal on the thirteenth day of February, 1906, and that thereafter, and on that day, the remittitur of this court was issued and mailed to the clerk of the district court, from whence the appeal was taken. On said day, after said dismissal, counsel for appellant prepared and served his notice of appeal on counsel for respondent, and on the same day filed an undertaking on appeal. It is contended by counsel for respondent that the jurisdiction of the district court did not attach until the remittitur was filed on the fifteenth day of February, and for that reason the appeal was prematurely taken. In other words, he contends that this court had jurisdiction of said case until the remittitur was actually filed in the trial court. In support of that contention, he cites Hazard v. Cole, 1 Idaho, 276, where it is said at page 305: “The general rule seems to be well settled that this court loses jurisdiction of a ease when the remittitur has been sent to and filed in the court below.” He cites in support thereof Grogan v. Ruckle, 1 Cal. 192; Lesse v. Clark, 20 Cal. 387; Rowland v. Kreyenhagen, 24 Cal. 52. The court then further says: “This gen
In Anthony v. Grand, 99 Cal. 602, 34 Pac. 325, the supreme court of California held that where an appeal was dismissed one day and a second appeal taken on the next day, the latter should not be dismissed on the ground that a prior appeal was then pending. In Sligh v. Shelton S. W. R. Co., 20 Wash. 16, 54 Pac. 763, the supreme court of Washington held that an appeal perfected on a second notice of appeal was not objectionable because there was no formal order of dismissal of the first appeal; and the same court in Griffith v. Maxwell, 20 Wash. 403, 55 Pac. 571, held that a person, by giving a premature notice of appeal and filing an appeal bond and abandoning it, is not deprived of the right to appeal on a second notice seasonably given, though there is no formal dismissal of the first appeal.
Where, as in the case at bar, counsel for respondent moves to dismiss the appeal, and such motion is confessed by the opposing counsel and allowed by the court, end an order dismissing the appeal without prejudice is made, a new appeal may be perfected as soon as the order of dismissal is made.
It is evident in this class of cases, when an appeal is dismissed without prejudice, that another appeal may be taken, if the time for taking an appeal has not already expired. It might occur that the time for another appeal would expire on the next day after the appeal was dismissed, and if the party was not permitted to make such appeal until after the remittitur was filed, he would lose his right of appeal. While, as a general rule, a trial court should not take jurisdiction and do anything in a case that has been appealed until the
The next' ground of the motion goes to the sufficiency of the undertaking on appeal. The undertaking is for costs on appeal and also for a stay of execution of the judgment. That part of the undertaking containing the obligation of the sureties to pay the damages and costs is as follows: “Now, therefore, in consideration of the premises and of such appeal, we, the undersigned, R. P. Chattin, Mountain Home, Elmore county, Idaho, and C. Hein of Mountain Home, Idaho, do hereby jointly and severally undertake and promise on the part of the appellants, that the same appellants will pay all damages and costs which may be awarded against them on the appeal not exceeding three hundred dollars ($300), to which amount we acknowledge ourselves jointly and severally bound.” It will be observed from that quotation that “the sureties obligate themselves to pay all damages and costs which may be awarded against them (appellants) on the appeal not exceeding $300.” The question arises whether that clause is a sufficient compliance with the provisions of section 4809, Revised Statutes, which requires the undertaking on appeal to be executed “to the effect that the appellant will pay all damages and costs which may be awarded against him on an appeal or on a dismissal thereof.” Would it be contended that said undertaking is sufficient, if it was to the effect that the appellant’would pay all damages and costs which may be awarded against him “on a dismissal” of such appeal? I think not. There are clearly two things that the sureties must obligate themselves to do, and the first is, they must undertake and promise on the part of the appellant that he will pay all damages and costs which may be awarded against him on appeal; and second, that the appellant will pay all damages and costs which may be awarded against him on a dismissal of the appeal; and if either of said obligations
The' first ground of the motion to dismiss the appeal is “That no sufficient undertaking on said appeal was ever filed in said cause. ’ ’ Under a well-established rule that the motion should specify with particularity the precise ground upon which the moving party will base his right to the relief sought, that ground in said motion is not sufficiently specified. The ground that no sufficient undertaking on said appeal or said cause was ever filed is so indefinite and uncertain that the opposing counsel is compelled to pick out certain grounds upon which he supposes his adversary intends to rely. It is the duty of the party to state his grounds specifically, and if he fails to do so, the court ought to disregard the motion. (Omaha etc. Co. v. Chauvin-Fant etc. Co., 18 Mont. 468, 45 Pac. 1087; 14 Ency. of Pl. & Pr. 136, and long list of cases cited. See, also, Estee’s Pleading, 4th ed., sec. 4401; Sawyer & Briggs v. Schoonmaker, 8 How. Pr. 198; Bailey & Southard v. Lane, 21 How. Pr. 475; Perkins v. Mead & Brook, 22 How. Pr. 476; State v. Fry, 10 Mont. 407, 25 Pac. 1055; Donnelly v. Struven, 63 Cal. 182; Freeborn v. Glazer, 10 Cal. 337; Loucks v. Edmondson, 18 Cal. 203; De Stafford v. Galrey, 15 Colo. 32, 24 Pac. 580. See, also, Wilson v. Wetmore, 1 Hill (N. Y.), 216; Scholfield v. Pope, 103 Ill. 138; Archer v. Long, 35 S. C. 585, 14 S. E. 24; Garrett v. The K. C. Coal Min. Co., 111 Mo. 279, 20 S. W. 25; Succession of Theriot, 114 La. 611, 38 South. 471; Hermann v. Hutcheson, 33 Or. 239, 53 Pac. 489; 3 Cyc. 1956.) In 3 Cyclopedia it is said: “A motion to
However, the appellant has filed another undertaking on appeal in place of the one .against which this motion was made, and it was suggested on the oral argument that that undertaking was as objectionable as the first, and upon an examination of it, we find that it is defective in the same particular. The attention of counsel for appellant was called to the insufficiency of the second undertaking on the oral argument, and he has made no application to file another undertaking. The motion, therefore, 'must be granted and the appeal dismissed, with costs in favor of the respondent.
I cannot concur in the conclusion reached by my associates in this case wherein it is held that the conditions of the bond are insufficient to bind the sureties in case the appeal is dismissed. I think the language of the bond is entirely sufficient to hold them in case of a •dismissal of the appeal. The obligation is that the bondsmen' “undertake and promise on the part of the appellants that the same appellants will pay all damages and costs which may be awarded against them on the appeal, not exceeding $300, to which amount we acknowledge ourselves jointly and severally bound.” It is true that section 4809, Revised Stat