Bothwell v. Keefer

• Decision Date: 21 February 1933
• Docket Number: 5979
• Citation: 20 P.2d 199,52 Idaho 737
• Parties: JAMES R. BOTHWELL, Appellant, v. JOS. KEEFER, J. A. KEEFER and DONALD MACKAY, Trustees of the FILER LIVESTOCK COMPANY, INC., a Corporation, Defendants, and FEDERAL RESERVE BANK OF SAN FRANCISCO, CALIFORNIA, a Corporation, Intervenor and Respondent
• Court: Idaho Supreme Court

20 P.2d 199

52 Idaho 737

JAMES R. BOTHWELL, Appellant, v. JOS. KEEFER, J. A. KEEFER and DONALD MACKAY, Trustees of the FILER LIVESTOCK COMPANY, INC., a Corporation, Defendants, and FEDERAL RESERVE BANK OF SAN FRANCISCO, CALIFORNIA, a Corporation, Intervenor and Respondent

No. 5979

Supreme Court of Idaho

February 21, 1933

APPEAL AND ERROR-NOTICE OF APPEAL-SERVICE BY MAIL-APPEAL BOND-SUFFICIENCY OF-SERVICE-MOTION TO DISMISS.

1. Service of notice of appeal by mail is proper.

2. Service of notice of appeal is complete when notice is deposited in mail.

3. Notice of appeal mailed ninetieth day after judgment was entered held timely although not received until following day (I. C. A., sec. 11-202).

4. Failing to serve appeal bond on adverse party held no ground for dismissal (I. C. A., secs. 11-202, 11-203).

5. That signature of surety on appeal bond differed from name of surety appearing in body thereof held no ground for dismissal where corporate seal affixed to bond correctly designated surety (I. C. A., secs. 11-202, 11-203).

6. Counter-signature of authorized and locally licensed agent of foreign surety company, who had power of attorney to sign appeal bond, held sufficient to prevent dismissal of appeal (I. C. A., sec. 40-901).

7. Supreme court justice's approval and filing of sufficient appeal bond forwarded by appellant before hearing on motion to dismiss appeal, held to have cured defective signature of surety on bond (I. C. A., sec. 11-217).

8. That appeal bond obligated itself to "plaintiff," who was appellant, held no ground for dismissal, since appeal bond is not invalid because not containing obligee's name (I. C. A., secs. 11-203, 11-217).

9. Where appeal bond obligated surety under statutory obligation in sum of $300, appeal was not dismissible, even though bond obligated surety to appellant (I. C. A., secs. 11-203, 11-217).

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. Wm. A. Babcock, Judge.

Motion to dismiss appeal. Denied.

Motion to dismiss denied.

Vaughn A. Price and Ray Agee, for Appellant.

In People's Sav. & T. Co. v. Rayl, 45 Idaho 776, 265 P 703, the supreme court of Idaho specifically held, and not by way of dictum, that service of notice of appeal is complete when notice with copy thereof was deposited in mail, the court saying:

"Regardless of the acceptance of service of the notice of appeal by plaintiff on February 9th, it was a proper case for service by mail, and such service being properly made, the service of the notice on plaintiff was complete on February 7th, when the notice with copy thereof, was deposited in the mail. (C S., sec. 7199.)"

The court also states in the foregoing case that:

"The service by mail upon February 7th is shown by affidavit upon this hearing; and such showing in this court may properly be considered upon motion to dismiss."

In Mendini v. Milner, 47 Idaho 322, 276 P. 35, the court held:

"Where parties to be served with notice of appeal resided at different place from party making service, it was proper to serve such notice of appeal by mailing, under C. S., sec 7200."

In Isaak v. Journey, ante, p. 274, 13 P.2d 247, the Idaho supreme court considering the statute as it now exists, which intervenor urges creates the situation requiring service of the undertaking on the adverse party, has announced that an appeal is perfected by filing and serving notice of appeal and filing an undertaking within five days, saying:

"The undertaking being filed, and the service of the notice of appeal occurring on the same day, the appeal was perfected on that date conformable to the requirements of C. S., Sec. 7153."

The statute specifically prescribes what must be contained in an undertaking, sec. 12-613, I. C. A., reciting:

"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 sign an undertaking indicating that they are thereby bound to the obligations of the statute requiring the undertaking to be given . . . ."

This statute does not require that the obligee be named in the bond.

The undertaking herein was to the one and only effect that appellant would pay all damages and costs which might be awarded against appellant on the appeal or a dismissal thereof. The court has placed just such an interpretation upon a similar bond in the case of Van Sicklin v. Mayfield Land etc. Co., 41 Idaho 673, 241 P. 1022.

Merrill & Merrill, for Respondent.

It is true that the statute prescribing the giving of the undertaking is silent as to its service. However, this same statute (now sec. 11-203, I. C. A.) was amended in 1907 so as to provide in effect that if the undertaking be insufficient or defective, such insufficiency or defect shall be deemed waived unless the respondent within twenty days after the filing of the undertaking shall file and serve on the appellant, or his attorney, a notice pointing out the defect. The amendment, by implication, requires notice of the undertaking and if appellant files a defective or void undertaking and fails and neglects to serve the same upon respondent, he is certainly in no position to contend the defect is waived because respondent fails to point the same out. Or conversely, by the amendment of the statute, the legislature created a situation requiring the service, of the undertaking.

Chapter 21, secs. 40-2101 and 2117, I. C. A., require the signing of such bonds by a resident agent authorized to act on behalf of such company. A company which has not qualified could not have such an agent and hence the bond is of no effect and is void. (See Gonzaga University v. Masini, 44 Idaho 113, 255 P. 413.)

We are not unmindful of the case of Van Sicklin v. Mayfield, 41 Idaho 673, 241 P. 1022, wherein it is held that:

"The bond is good even though the name of the obligee does not appear therein."

The language of the court in the Van Sicklin case is as follows:

"Since the law does not require that the undertaking specify the names of the parties whom it indemnifies, the mere omission of the names of Van Sicklin and Adams does not invalidate the undertaking."

But this is not our point. Here the bond is not only silent as to the respondent but it is expressly limited to the protection of the plaintiff.

GIVENS, J. Budge, C. J., and Morgan and Holden, JJ., concur.

OPINION

GIVENS, J.

Judgment was entered herein August 19, 1932. November 17, 1932, the ninetieth day thereafter, attorneys for appellant mailed a copy of the notice of appeal from Twin Falls to attorneys for respondent residing at Pocatello, received the following day.

Respondent moves to dismiss the appeal because, first, the notice of appeal was not served within the statutory time; second there was no service of any undertaking on appeal made upon said respondent or its attorneys; third, that the undertaking was void, as not being executed by a corporation having the right to transact business in Idaho, that no resident agent had countersigned the undertaking, and that the undertaking...