Barnes v. Buffalo Pitts Co.

Decision Date02 May 1899
PartiesBARNES v. BUFFALO PITTS COMPANY
CourtIdaho Supreme Court

APPEAL-UNDERTAKING ON APPEAL-FORECLOSURE OF MORTGAGE-STAY OF EXECUTION.-On appeal from a judgment for foreclosure of a mortgage upon personal property, an undertaking in the sum of $300 is sufficient to stay the execution of the judgment pending the appeal, and if the district court requires the appellant to give a further undertaking to stay execution, such undertaking is void and cannot be enforced against the sureties therein.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Judgment affirmed, with costs to respondent.

George W. Goode and Warren Truitt, for Appellant.

Appellant claims that when an appeal is perfected from such an order or judgment as the one appealed from, all proceedings in the cause are stayed until the determination of such appeal. (Idaho Rev. Stats., sec. 4814; Ruggles v. Superior Court, 103 Cal. 125, 37 P. 211; Livermore v Campbell, 52 Cal. 75; Chouteau v. Rowse, 90 Mo 191, 2 S.W. 209; Petrie v. Muskegon C. Judge, 98 Mich. 130, 56 N.W. 1109; Woodrum v. Kirkpatrick, 2 Swan (Tenn.), 218; 2 Ency. of Pl. & Pr. 327 et seq.; Kaufman v. Superior Court, 108 Cal. 446, 41 P. 476.)

S. S Denning, for Respondent, cites no authorities on this point decided by the court.

HUSTON, C. J. Quarles and Sullivan, JJ., concur.

OPINION

HUSTON, C. J.

Plaintiff brought action against defendant under the provisions of section 3364 of the Revised Statutes to recover $ 100 penalty, and $ 300 damages, for defendant's refusal to discharge a mortgage alleged to have been fully satisfied. The answer put in issue the material allegations of the complaint, and at the same time defendant filed a cross-complaint, alleging the sum of $ 402.15 and an attorney's fee of $ 40 to be due on the promissory notes secured by said mortgage, and demanding judgment and decree foreclosing said mortgage. Judgment and decree for the amount claimed by defendant in its cross-complaint was rendered by the district court, from which plaintiff appealed to this court, where the judgment of the district court was affirmed. (Barnes v. Agricultural Works, ante, p. 259, 6 Idaho 259, 55 P. 237.)

Upon taking appeal from the judgment and decree of the district court, in favor of the defendant, the plaintiff in said action filed his undertaking on appeal in the sum of $ 300, and subsequently, by order of the court, filed an additional bond in the sum of $ 150, as fixed by the court, "to pay any deficiency arising from the sale of said property, and under said statutory obligations." Subsequently the judge of the district court set aside its order so made as "erroneous and void," and required the appellant in that action to give a bond in double the amount of the judgment and decree; which order was complied with by the plaintiff in said action by filing a new undertaking for costs in the sum of $ 300, and a stay bond in the sum of $ 950, that being the amount fixed by the judge of the district court, and the sum being more than double the amount of the judgment or decree rendered in said cause, which was $ 450.85. On the coming down of the remittitur, the appellant in said action moved for judgment on the undertaking on appeal against the sureties therein, under the provisions of section 4810 of the Revised Statutes. The plaintiff filed objections to said motion, which objections were sustained by the court, and the motion overruled, from which action of the district court this appeal is taken.

The only matter before us for review on this appeal is the action of the district court in overruling defendant's motion for judgment against the sureties on the undertaking on appeal. It is contended by appellant--first, that the undertaking in question was authorized by sections 4810 and 4813 of the Revised Statutes; second, that if the undertaking "was not authorized by statute, still the judge had jurisdiction of the subject matter, and, if his judgment or order was erroneous, it ought to have stood upon its exceptions, and taken an appeal to this court from such order or objection"; third, "conceding that the bond was not authorized either under section 4810 or section 4813, still the court was authorized to order and demand the bond under sections 4 and 3925 of the Code of Idaho." The fourth contention, we think, is altogether too speculative to require consideration.

As to the first proposition of appellant: Section 4810 of the Revised Statutes provides for and defines the kind of undertaking required in an appeal from a money judgment. This was not an appeal from a money judgment. The action was for the foreclosure of a chattel mortgage. The judgment and decree was for a foreclosure and sale of the mortgaged property. There can be no money judgment entered in an action to foreclose a mortgage lien, except as provided in section 4520 of the Revised Statutes, to wit: "And if it appear...

To continue reading

Request your trial
15 cases
  • Berryman v. Dore
    • United States
    • United States State Supreme Court of Idaho
    • December 11, 1926
    ......Leachman, 3. Idaho 392, 29 P. 849; Rein v. Callaway, 7 Idaho 634,. 65 P. 63; Barnes v. Buffalo Pitts Co., 6 Idaho 519,. 57 P. 267; Portland Cattle Loan Co. v. Biehl, 42. Idaho 39, ......
  • Eastern Idaho Production Credit Ass'n v. Placerton, Inc., 12710
    • United States
    • United States State Supreme Court of Idaho
    • February 12, 1980
    ...against the debtor for a deficiency judgment. See Jeppesen v. Rexburg State Bank, 57 Idaho 94, 62 P.2d 1369 (1936); Barnes v. Buffalo Pitts Co., 6 Idaho 519, 57 P. 267 (1899). To allow the creditor to retain the security without ascertaining its value, and then to give him a judgment for th......
  • Great American Indemnity Company v. Bisbee, 6556
    • United States
    • United States State Supreme Court of Idaho
    • May 23, 1938
    ...until after the foreclosure sale." (Italics supplied. ) Counsel for appellant places his chief reliance on the cases of Barnes v Buffalo Pitts Co., 6 Idaho 519, 57 P. 267, and Tritthart v. Tritthart, 24 Idaho 186, 133 121. An analysis of those cases, and the statutes to which they refer, sa......
  • Marshall & Ilsley Bank v. Stepke
    • United States
    • United States State Supreme Court of Wisconsin
    • May 17, 1938
    ...contention are Carson v. Long-Bell Lbr. Co., 8 Cir., 73 F.2d 397;Norton v. Blenkiron, 138 Cal.App. 66, 31 P.2d 807;Barnes v. Buffalo Pitts Co., 6 Idaho 519, 57 P. 267;Perkins v. Bundy, 42 Idaho 560, 247 P. 751. The rule that action at law cannot be brought upon a note which is secured by a ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT