Stapleton v. Pease

2 Mont. 508 | Mont. | 1876

BlaKE, J.

The respondent moves to dismiss this appeal because the proper undertaking has not been filed. The statute requires that the undertaking on appeal shall be executed “ to the effect that the appellant will prosecute his appeal with effect, and will pay all damages and costs which may be awarded against him on the dismissal or trial of the appeal, not exceeding $300.” Sts. 8th Sess. 50, § 5. The undertaking in this case contains the following condition: “ The said plaintiffs will prosecute their appeal with effect, and pay all costs and damages which may be awarded against-plaintiffs and in favor of defendants on said appeal, either by the dismissal or the trial of said appeal, not exceeding the sum of $500.” The undertaking recites that the judgment has been recovered -for the possession of a certain quartz lode, and costs ($182.50); that plaintiffs are desirous of appealing from the judgment to the supreme court, and that the court has ordered that an undertaking be given in the sum of $500, as security for the costs and damages on the appeal, and a stay of proceedings in the land office. It appears that the court made an order that all proceedings be stayed upon the filing of a bond in the sum of $500. The respondent contends that the undertaking has been given according to this order, and that there is no undertaking to render this appeal effectual.

It is not necessary for us to determine the sufficiency of the undertaking under the order of the court below. ¥e are satisfied that it sustains this appeal. The undertaking complies substantially with the statute, and secures to the respondent all that the law designed for him. Yoorhies’ Code (10th ed.), 541 c ; Zoller v. McDonald, 23 Cal. 136.

The execution of the undertaking in a sum which exceeds that fixed by the statute does not affect its validity. Ex parte Eastabrooks, 5 Cow. 27; Zoller v. McDonald, supra.

The motion is overruled.

Motion overruled.