Respondent moved to dismiss the appeal on the ground that the appeal bond was not signed by a resident agent and that the surety company, under C. S., sec. 5108, was disqualified as such because it had failed to pay a judgment.
Appellant contends that the exceptions, not having been taken within twenty days of the filing of the first bonds, came too late. (C. S., sec. 7544.) Such section applies only to insufficient or defective bonds, a distinction having been made by this court between such and void bonds. (Spokane C. L. Co.v. Crane Creek S. Co., 36 Idaho 796, 213 P. 699" court="Idaho" date_filed="1923-03-19" href="https://app.midpage.ai/document/spokane-cattle-loan-co-v-crane-creek-sheep-co-5171972?utm_source=webapp" opinion_id="5171972">213 P. 699; Farnworth v.Viet, 39 Idaho 40" court="Idaho" date_filed="1924-05-03" href="https://app.midpage.ai/document/farnworth-v-viet-3410771?utm_source=webapp" opinion_id="3410771">39 Idaho 40, 225 P. 1023" court="Idaho" date_filed="1924-05-01" href="https://app.midpage.ai/document/richardson-v-banbury-3409909?utm_source=webapp" opinion_id="3409909">225 P. 1023.)
Appellant also contends that the motion may not, under rule 48, be considered because not filed at least one day before the argument. This rule, by the exception therein contained, does not apply to jurisdictional matters (Brockman v. Hall, 37 Idaho 564" court="Idaho" date_filed="1923-07-30" href="https://app.midpage.ai/document/brockman-v-hall-5172068?utm_source=webapp" opinion_id="5172068">37 Idaho 564,218 P. 188" court="Idaho" date_filed="1923-07-30" href="https://app.midpage.ai/document/brockman-v-hall-5172068?utm_source=webapp" opinion_id="5172068">218 P. 188), and the point that a bond is void is jurisdictional. (C. S., sec. 7153.)
A bond must be signed by a resident agent and, when objection is made on the ground that it is not so signed, the duty devolves upon appellant to show proof of authority. (Gonzaga University v. Masini, ante, p. 113, 255 P. 413" court="Idaho" date_filed="1927-03-31" href="https://app.midpage.ai/document/gonzaga-university-v-masini-3409501?utm_source=webapp" opinion_id="3409501">255 P. 413.) The only authority appellant has shown that a resident agent signed is a copy of a purported authority of the agent to sign as a resident agent for appellant, which the certifying officer, Henry Telcher, clerk of the district court in which the action was tried, states was by such purported agent exhibited to him, but not that the same was on file in his office. We are impressed with appellant's statement on page 14 of their memorandum on respondents' motion to dismiss, that a clerk only has authority to certify records in his office. (11 C. J., p. 887.) The authority of the agent to sign having been questioned, the burden was on appellant to justify. (GonzagaUniversity v. Masini, supra.) Not having met such burden, the record does not
show a valid bond. The appeal must, therefore, be dismissed, and costs awarded to respondent. This conclusion renders it unnecessary to consider and pass upon the other point urged by respondent.
Taylor and T. Bailey Lee, JJ., concur.
Wm. E. Lee, C. J., dissents.
(November 8, 1927.)
ON PETITION FOR REHEARING.
Counsel for appellant, in his petition for rehearing, calls attention to three certificates under the hand and seal of the state director of insurance authorizing J.G. Eimers and J.E. Graham, of Grangeville, Idaho, to solicit and procure insurance and transact business for appellant company, contending that such certificates show the authority of such named parties to sign bonds for the appellant. Such certificates, however, are not sufficient to show these agents had the authority to bind the company. Soliciting and procuring business, or even transacting business, is not the same as having authority to bind the company as surety. Appellant, therefore, failed to show that the bonds in question were signed by agents, having power to sign and bind the company.
Rehearing denied.