Bain v. Olsen

• Decision Date: 28 September 1922
• Parties: PETER BAIN, Appellant, v. CHRIS O. OLSEN and HATTIE OLSEN, Respondents
• Court: Idaho Supreme Court

209 P. 721

36 Idaho 130

PETER BAIN, Appellant, v. CHRIS O. OLSEN and HATTIE OLSEN, Respondents

Supreme Court of Idaho

September 28, 1922

APPEAL - MOTION TO DISMISS - DEFECTIVE UNDERTAKING - NOTICE OF DEFECTS.

In case of a defective, as distinguished from a void, undertaking on appeal, the insufficiencies or defects of the undertaking are waived unless respondent, within twenty days after the filing of the undertaking, files and serves upon appellant, or his attorney, a written notice pointing out such defects and insufficiencies.

APPEAL from the District Court of the Sixth Judicial District, for Bingham County. Hon. Ralph W. Adair, Judge.

Motion to dismiss appeal because of defective undertaking. Denied.

Motion to dismiss appeal denied.

W. A Beakley, for Appellants.

The objection to the undertaking must "be specifically pointed out or waived." (Martin v. Wilson (on rehearing), 24 Idaho 353, 134 P. 532; King v Seebeck, 20 Idaho 223, 118 P. 292; Clear Lake P Co., etc., v. Chriswell, 31 Idaho 339, 173 P. 326; Edminston v. Steele, 12 Idaho 613, 87 P. 677, 9 L. R. A., N. S., 924; Finney v. Moore, 9 Idaho 284, 74 P. 866; Estate of Blackington, 29 Idaho 310, 158 P. 492.)

E. O. Thompson and W. P. Hanson, for Respondents, file no brief.

MCCARTHY, J. Rice, C. J., and Dunn and Lee, JJ., concur.

OPINION

MCCARTHY, J.

Respondents move to dismiss appellant's appeal on the ground that he has failed to perfect it by filing an undertaking as required by C. S., sec. 7154. The undertaking reads as follows:

"Whereas the above-named plaintiff, Peter Bain, desires to give an undertaking for the purpose of staying the execution in the above entitled matter and of appealing the same to the Supreme Court of the State of Idaho, Now, therefore, we the undersigned sureties, do hereby jointly and severally obligate ourselves to the said Chris O. Olsen and Hattie Olsen, the said defendants, under said statutory obligations as provided by sec. 7236 I. C. S. 1919, in the sum of $ 400.00."

C. S., sec. 7236, provides:

"Whenever a party to an action or proceeding desires to give an undertaking provided to be given by law, it shall be sufficient if the sureties sing an undertaking indicating that they are thereby bound to the obligations of the statute requiring the undertaking to be given. Such undertaking may be in form as follows:

"(Title of Court. Title of Cause.)

"Whereas, the desires to give an undertaking for (state what) , now, therefore, we the undersigned sureties, do hereby obligate ourselves jointly and severally, to (name who) under said statutory obligations in the sum of dollars.

"The sureties so signing such undertaking are bound to the full statutory obligations of the statute requiring the undertaking."

C. S sec. 7154, provides the necessary conditions of an undertaking on appeal, and sec. 7155 those of an undertaking to stay execution. The point made is that the undertaking should expressly mention that the sureties obligate themselves under the provisions of sec. 7154, and that this undertaking refers simply to sec. 7236 which does not prescribe the conditions. We conclude that the undertaking is subject to the criticism made, but that it is defective rather than void. It is subject to the construction that the words "statutory obligations" refer to the conditions of an appeal...