Kelly v. Leachman

51 P. 407 | Idaho | 1897

Lead Opinion

SULLIVAN, C. J.

This is an appeal from the judgment and order overruling motion for a new trial. A motion was made to dismiss the appeal, on the ground that the undertaking was void 'for uncertainty. In the ^preamble of the undertaking it is recited that the appeal is from the judgment, and from the order denying a motion for a new trial. And in the obligation the obligors agreed that said appellants will pay all damages and costs that may be awarded against them on the “appeal.” On the authority of Sebree v. Smith, 2 Idaho, 359, 16 Pac. 477; Motherwell v. Taylor, 2 Idaho, 148, 9 Pac. 417, Eddy v. Vanness, 2 Idaho, 101, 6 Pac. 115, and Schiller v. Small, 4 Idaho, 422, 40 Pac. 53, the appea] must be dismissed. This *523question has been passed upon so frequently by this court that the wonder is that attorneys are not more careful in preparing their undertakings on appeal. The motion is granted, and the appeal dismissed; costs of this appeal granted to the respondent.

Huston and Quarles, JJ., concur.



Rehearing

ON REHEARING.

QUARLES, J.

The question that is raised in this case by petition for rehearing has been prolific of annoyance to the court, but has been fully settled by repeated decisions. Where there are two appeals, there need be only one undertaking on both; but the undertaking must be so worded that the sureties will be liable for the costs that may be awarded against the appellant on either of the appeals, or on a dismissal of either of said appeals. If two appeals are taken, and the undertaking binds the sureties with certainty to pay the costs that may be awarded on one of the appeals only, or a dismissal thereof, but does not so bind them on the other appeal, the undertaking will support the first appeal, but will not support the last one. In the case at bar there are two appeals, both of which are recited in the undertaking; but the sureties stipulated that “we, the undersigned, residents of the county of Nez Perces, in the state of Idaho, do hereby jointly and severally undertake and promise on the part of the appellants that the said appellants will pay all damages and costs which may be awarded against them on the appeal or on a dismissal thereof, not exceeding $300, to which amount we acknowledge ourselves jointly and severally bound.” There being two appeals, and the sureties undertaking on one only, without designating which one, the undertaking is void for uncertainty. Parties appealing should have no trouble in giving a sufficient undertaking on appeal. If the undertaking in question had only recited one appeal, it would have been good as to that one. If it had said “on said appeals, or either of them,” it would have been sufficient. In addition to the cases cited in the original opinion, see the following named cases, decided by this court: McCoy v. Oldham, 1 Idaho, 465; Matthison v. Leland, 1 Idaho, 712; Cronin v. Mining Co., 3 *524Idaho, 438, 32 Pac. 53; Young v. Tiner, 4 Idaho, 269, 38 Pac. 697; Hoskins v. Wooden, 4 Idaho, 293, 38 Pac. 933; Schiller v. Small, 4 Idaho, 422, 40 Pac. 53; Weil v. Sutter, 4 Idaho, 748, 44 Pac. 555; Thiessen v. Riggs, ante, p. 487, 51 Pac. 107. The object in requiring an undertaking on appeal is to protect the respondent from damage when there is no merit in the appeal, or the appeal is not prosecuted with effect. The sureties are bound by the precise terms of their undertaking, and not otherwise. If they stipulate as to one appeal only, the undertaking must be so certain that there can be ascertained from the letter thereof the identical appeal in which they agree to be bound. A void bond on appeal cannot be amended, and the statute does not so authorize. A rehearing is denied.

Sullivan, C. J., and Huston, J., concur.