85 P. 928 | Idaho | 1906
This case was instituted in the justice’s court of Harrison precinct, Kootenai county. Judgment was entered for the plaintiff, and the defendant appealed to the district court. On motion of the plaintiff the appeal was dismissed by the district court and judgment of dismissal was thereupon entered, from which the defendant has appealed to this court. It is contended by respondent here that the appeal was properly dismissed for the reason that the defendant and appellant failed to give an undertaking on appeal as provided by section 4842, Revised Statutes, and if that contention is correct, the judgment of the lower court in dismissing the appeal should be affirmed.
“Now, if the above defendant, William Doyle, shall well and truly pay, or cause to be paid, the amount of said judgment and all costs, and obey any order the said district court may make therein, if the said appeal be withdrawn or dismissed, or pay the amount of any judgment, and all costs that may be recovered against the said district court, then this obligation to be null and void; otherwise to remain in full force and virtue.”
The appellant contends that while the undertaking was not sufficient to stay proceedings in the justice’s court, that it did constitute a sufficient undertaking on appeal. Eespondent, on the other hand, contends that under section 4842 the undertaking is, if anything, merely a stay bond and is in no respect an appeal bond.
The supreme court of California in McConkey v. Superior Court, 56 Cal. 83, in construing section 978 of the Code of Civil Procedure of that state, which is the same as section 4842 of our statute, held that “the word ‘or’ in section 978 of the Code of Civil Procedure, joining the clauses referring respectively to the undertaking for costs on appeal and an undertaking for a stay of proceedings, is to be read ‘ and, ’ and in all cases the former undertaking is essential. ’ ’
Our own supreme court in Numbers v. Rocky Mountain Bell Tel. Co., 7 Idaho, 408, 63 Pac. 381, said: “We think it is best, however, to suggest that said section 4842 of the Eevised Statutes requires, in eases of appeal from justices’ courts to the district court where execution of the judgment is to be stayed, two obligations (may be in the same undertaking) —one in the sum of $100 to cover costs of appeal; the other, for double the amount of thé judgment and costs in the jus