Caldwell v. Evans

• Court: Idaho Supreme Court
• Writing for the Court: BUDGE, C. J.
• Citation: Caldwell v. Evans, 47 Idaho 342, 275 P. 779 (Idaho 1929)
• Decision Date: 14 March 1929
• Docket Number: 5370
• Parties: WINSTON M. CALDWELL, Appellant, v. GEORGE E. EVANS, Respondent

275 P. 779

47 Idaho 342

WINSTON M. CALDWELL, Appellant, v. GEORGE E. EVANS, Respondent

No. 5370

Supreme Court of Idaho

March 14, 1929

APPEAL AND ERROR-FILING OF UNDERTAKING-CHECK AS DEPOSIT-SUBSTITUTION OF AN UNDERTAKING.

1. Deposit of check for $300 with clerk of court in which judgment was entered was in substantial compliance with provisions of C. S., secs. 7153, 7154, as deposit of sum of $300 in lieu of filing of written undertaking on appeal.

2. Appeal was perfected by deposit of check with clerk of court under C. S., secs. 7153, 7154, and clerk was without authority to permit an undertaking to be filed and substituted for deposit.

3. Withdrawal of check deposited with clerk of court under C S., secs. 7153, 7154, and substitution of written undertaking on appeal, rendered appeal ineffectual and required dismissal, since there was no authority for substitution of written undertaking on appeal after deposit of check.

4. Where there was failure of compliance with provisions of C S., secs. 7153, 7154, by filing of undertaking on appeal, or deposit in lieu thereof, and there was no waiver of requisite undertaking, appeals were of no effect and must be dismissed.

APPEAL from the District Court of the Third Judicial District, for Elmore County. Hon. B. S. Varian, Judge.

Motion to dismiss appeal. Granted.

Appeal dismissed.

R. W Beckwith, Carl A. Burke and Wm. M. Morgan, for Respondent.

The notice of appeal having been served and filed and a deposit in lieu of an undertaking having been made, the district court was without jurisdiction of the case and the clerk had no authority to permit a substitution of an undertaking for the deposit. (C. S., sec. 7153; Woodmansee & Webster Co. v. Woodmansee, 31 Idaho 747, 176 P. 148; Hanley v. Stewart, 54 Ore. 38, 102 P. 2; Spear v. Johnson, 111 Minn. 74, 137 Am. St. 535, 126 N.W. 402.)

"Where appellant has made his choice of procedure, and has deposited a sum of money in lieu of a bond or undertaking, the appellate court will not, in the absence of statutory authority, allow him to retract and file an undertaking." (3 C. J. 1116; Wiebold v. Rauer, 95 Cal. 418, 30 P. 558.)

Unless an undertaking on appeal is filed or waived, or a deposit in lieu of an undertaking is made within the time fixed by statute, the appeal will be dismissed. (Melquist v. Board of Commissioners, 45 Idaho 296, 261 P. 774, and cases therein cited.)

Martin & Martin and C. S. Hunter, for Appellant.

The deposit of the check of John W. Caldwell with F. M. Hobbs as clerk and the acceptance of the same by such clerk is a sufficient deposit as required by C. S., sec. 7154. (England v. Nelson, 31 Idaho 686, 175 P. 814.)

The substitution of the surety bond was proper and if there was a defect therein the statute sets forth the procedure to be followed by respondent. (C. S., sec. 7154.)

BUDGE, C. J. Givens and Wm. E. Lee, JJ., concur.

OPINION

BUDGE, C. J.

Judgment in favor of respondent was entered in this cause, in the district court of the third judicial district for Elmore county, on September 7, 1928. On December 6, 1928, notice of appeal to this court was served and filed on behalf of appellant. So far as material, C. S., secs. 7153, 7154, require, in order that an appeal may be effectual, the filing of an undertaking, or a deposit with the clerk of the court in which the judgment was entered of the sum of $ 300, within five days after service of the notice of appeal. On December 11, 1928, the last day upon which an undertaking might be filed or a deposit made, a check for $ 300 was left with the clerk of the said district court, with the understanding that on the day following an undertaking on appeal, executed by two sureties, would be filed with the clerk and the check withdrawn, the undertaking to be substituted for the deposit of the check. This was done accordingly.

The deposit of the check was in substantial compliance with the provisions of C. S., secs. 7153, 7154, as a deposit of the sum of $ 300 in lieu of the filing of a written undertaking on appeal. (England v. Nelson, 31 Idaho 686, 175 P. 814; Smith v. Field, 19 Idaho 558, Ann. Cas. 1912C, 354, 114 P. 668.) The serious question arises as to the substitution of the undertaking for the check after the time the statute permits an undertaking to be filed. We have no statute authorizing such a substitution.

"Where appellant has made his choice of procedure, and has deposited a sum of money in lieu of a bond or undertaking, the appellate court will not, in the absence of statutory authority, allow him to retract and file an undertaking." (3 C. J. 1116, citing Wiebold v. Rauer, 95 Cal. 418, 30 P. 558.)

The appeal was perfected by the deposit with the clerk of the check, and the clerk was without authority to permit an undertaking to be filed and substituted for the deposit. (Woodmansee & Webster Co. v. Woodmansee, 31 Idaho 747, 176 P. 148; Hanley v. Stewart, 54 Ore....