63 P. 381 | Idaho | 1900
This action was commenced by the respondent against the appellant in the justice’s court of West Weiser
“Whereas the defendant desires to give an undertaking for payment of costs on appeal and stay of proceedings, as provided to be given in section 4842 of the Bevised Statutes of the state ■of Idaho: Now, therefore, we, the undersigned sureties, do hereby obligate ourselves, jointly and severally, to the said plaintiff, under said statutory obligations, in the sum of two hundred and fifty ($250) dollars. This is given in lieu of original undertaking excepted to.
“Dated Boise, Idaho, February 26th, 1900.
“By DUDLEY HOLLAND,
“Mgr. Fidelity and Deposit Company of Maryland.
[Seal] “By H. C. WYMAN,
“Its Attorney in Fact and Member of Local Board.”
This undertaking was stamped with a three-cent internal revenue stamp, which was canceled, and attested by Sherman GL 'Finer general agent. The above appears from the transcript before us to have been all of the proceedings in the justice’s court.
The transcript does not disclose the particular ground upon which the district court dismissed the appeal from the justice’s-court. But we are satisfied that the action of the district court was correct. That portion of section 4842 of the Revised Stat
It is argued on behalf of the appellant that the execution of said surety bond in lieu of the original undertalking on appeal -answered the requirements of the statute as to justification of sureties upon the original undertaking or new sureties, for which reason the district court erred in dismissing the appeal. We do .not think so. Under the provisions of the act of February 23, 1899 (see Acts 1899, p. 337), surety companies who comply with the requirements of said act are qualified to execute undertakings upon appeal. But when an undertaking executed by such surety company is offered in an inferior court in lieu of an original undertaking on appeal from such court to the district court, which has been excepted to on the ground of insufficiency, it must be accompanied by prima facie evidence showing that the surety company which executes it has complied with the provisions of the act of February 23, 1899. The new undertaking -executed by the surety company in question in this case, unaccompanied as it was by any evidence showing prima facie that said surety company was authorized to execute such undertaking, and without notice of the filing of same to the respondent, did not comply with the requirement of section 4842 of the Revised Statutes.
As to the sufficiency of the new undertaking, in substance, we deem it unnecessary to express an opinion. We think it best, however, to suggest that said section 4842 of the Revised Stat