230 P. 46 | Idaho | 1924
Lead Opinion
The appellant states in his notice of appeal that he appeals "from the whole of that certain order made and entered in said action . . . . sustaining the objection of the defendant, A.P. Enns, to the introduction of any testimony under the complaint in said action, and from the further order of said above entitled court dismissing said action with prejudice as to the defendant, A.P. Enns, and from the whole thereof . . . ."
The "orders" in question incorporated in one instrument were as follows: *746
"Order of Dismissal. The above entitled cause came regularly on for trial on March Second, 1923, same being a regular judicial day of the February, 1923, Term of the above entitled court, and the plaintiff appeared by his counsel, A.S. Dickinson, Esq., and announced ready for trial and the defendant, A.P. Enns, appeared by his counsel Messrs. Whitcomb, Cowen and Clark, and T.S. Becker, Esq., and objected to the introduction of any evidence . . . . upon the ground and for the reason that said complaint failed to state a cause of, action as to said defendant, and after argument of counsel for the respective parties, and being fully advised in the premises, the Court is of the opinion that said objection is well taken and the same is hereby sustained.
"It is further ordered that said action be, and the same is hereby dismissed, as to the defendant, A.P. Enns, without leave to amend, to which ruling of the Court the plaintiff then and there in open court duly excepted.
"Dated at Blackfoot, Idaho, this the second day of March, 1923.
"RALPH W. ADAIR,
"District Judge."
It will be observed from an inspection of C. S., sec. 7152, that an order sustaining an objection to the introduction of evidence is not appealable. But a formal order dismissing an action is in effect a final judgment as contemplated by the statute, and will be so considered, notwithstanding its designation. (2 Hayne on New Trial and Appeal, sec. 184; 1 Black on Judgments, 2d ed., secs. 21, 26, 27; Zoller v.McDonald,
The order in question is certainly in its nature and essence a final judgment in that it "finally and entirely disposes of the whole case." (Marks v. Keenan,
"It is also understood that the undersigned sureties will not be called upon to make good any indebtedness which may be incurred by the salesman under this contract, except only in case that the salesman fails to pay such indebtedness after a reasonable effort has been made by the Company to collect the same from him."
After setting up the contract and the fact of account unpaid, plaintiff plead that Carpenter "at the time of his death was insolvent and left no estate out of which said amount *748 could be paid or could be made. And that upon ascertaining the fact of the said Carpenter's death and of his insolvency plaintiff made demand upon the defendants for the payment of said balance . . . ." There was no allegation whatever of any attempt by plaintiff to collect from Carpenter prior to the time of his death, or from his estate thereafter. Respondent claims that the complaint fails to state a cause of action under the terms of the contract or in consonance with the law of guaranty since the contract being one of conditional as distinguished from absolute guaranty it was vitally incumbent upon plaintiff to plead as a condition precedent that he had made a reasonable effort to collect the amount from Carpenter before resorting to the guarantor's liability.
The contract is undoubtedly one of conditional guaranty and respondent's contention must prevail. (4 Ency. Pl. Pr. 627; 13 Cal. Juris. 126; Ohio Electric Car Co. v. Le Sage,
McCarthy, C.J., and Budge, Dunn and Wm. E. Lee, JJ., concur.
Addendum
The foregoing is hereby adopted as the opinion of the court and the judgment is affirmed. Costs awarded to respondent.