32 P. 207 | Idaho | 1893
On the twenty-ninth day of April, 1892, a judgment was made and entered in the district court of Elmore
The affidavit which is usually attached to a bond contains the justification of the sureties, under section 4934. It is, however, no part of the undertaking; and the undertaking is complete ■without it, and in this case could be collected of the sureties, in •case the judgment of the court below had been affirmed by the supreme court. (2 Hayne on New Trial and Appeal, sec. 213.) The plaintiff could have excepted to the bond, because the affidavit of the sureties was not attached thereto in proper
It is true that the case had béen taken from the jurisdiction of the district court by the appeal. The appeal includes all proceedings down to the perfecting of the appeal; but this, execution was issued by the clerk after the appeal had been perfected, and without authority of law. The court had authority to order it quashed, under the eighth subdivision of section 3862. The order overruling the motion to quash the execution is reversed, and the execution quashed. Costs awarded to defendant.