Caldwell v. Village of Mountain Home, 5499

• Decision Date: 06 March 1930
• Docket Number: 5499
• Citation: 49 Idaho 32,285 P. 1020
• Parties: WINSTON M. CALDWELL, Appellant, v. VILLAGE OF MOUNTAIN HOME, IDAHO, a Municipal Corporation, and J. B. WHITSON, Respondents
• Court: Idaho Supreme Court

285 P. 1020

49 Idaho 32

WINSTON M. CALDWELL, Appellant, v. VILLAGE OF MOUNTAIN HOME, IDAHO, a Municipal Corporation, and J. B. WHITSON, Respondents

No. 5499

Supreme Court of Idaho

March 6, 1930

APPEAL AND ERROR - FILING OF TRANSCRIPT - SUFFICIENCY OF UNDERTAKING-OBJECTIONS-TIME FOR MAKING.

1. Where transcript filed on February 8th, prior to expiration of time limit on February 10th, lacked index required by rule 14 of supreme court and was returned by clerk in accordance with rule 20 for proper preparation, there was no substantial violation of statute or rules 23 and 25, since return by clerk was not rejection in toto and de facto transcript had been filed in time, defective only in matter not affecting its substance.

2. Where appeal was taken both from judgment and order vacating injunction, and undertaking was conditioned "that the said appellant will pay all damages and costs which may be awarded against him on the appeal," attack on ground that undertaking was void for uncertainty would have been conclusive prior to 1907, but under Rev. Stats 1887, as amended by Laws 1907, p. 134 (now C. S., sec. 7154) such objections must be made within twenty days.

APPEAL from the District Court of the Fourth Judicial District, for Gooding County. Hon. Doran H. Sutphen, Judge.

Motion to dismiss appeal. Denied.

Motion to dismiss denied. Costs to appellant.

R. W Beckwith and Carl A. Burke, for Respondents.

If transcript on appeal is not filed in the supreme court within the time prescribed by rule 26, or an extension granted under rule 28, the appeal will be dismissed under rule 29, unless appellant shows excuse for such failure. (Bohannon Dredging Co. v. England, 30 Idaho 721, 168 P. 12; Gemmel v. Collins, 36 Idaho 416, 210 P. 738; Parkinson v. Winzler, 36 Idaho 449, 210 P. 738; Intermountain Assn. of Credit Men v. Rexburg Farmers Soc of Equity, Ltd., 38 Idaho 121, 220 P. 114; Grand View State Bank v. Thams, 45 Idaho 566, 263 P. 1000.)

Withdrawal by appellant of the entire record on appeal, leaving nothing of the case in the supreme court after the expiration of the six months from the rendition of the decree, without any saving order as to appellants' rights under the appeal, is equivalent to a voluntary dismissal of the appeal. (Jefferson County v. Saxon, 10 Neb. 14, 4 N.W. 309.)

Where an appeal is taken both from a judgment and from an order denying a new trial, a bond reciting both appeals and conditioned to pay all costs and damages awarded on the appeal, without specifying which one, is void as to both appeals, and both the appeals will be dismissed. (Mathison v. Leland, 1 Idaho 712; Motherwell v. Taylor, 2 Idaho 148, 9 P. 417.)

A void bond, such as one which is intended to apply to two appeals, and is conditioned merely to pay damages awarded on "the appeal" without specifying which appeal, cannot be amended. (Kelly v. Leachman, 5 Idaho 521, 51 P. 407.) Where an appeal bond is void the appeal should be dismissed. (Farnsworth v. Viet, 39 Idaho 40, 225 P. 1023.)

C. S., sec. 7154, requiring exceptions to an appeal bond to be taken within twenty days of filing, applies only to insufficient or defective bonds and is not applicable to the case of a void bond. (Strickfaden v. Greencreek Highway District, 44 Idaho 751, 260 P. 431; Spokane Cattle Loan Co. v. Crane Creek Sheep Co., 36 Idaho 786, 213 P. 699; Farnsworth v. Viet, supra.)

C. S. Hunter and Martin & Martin, for Appellant, file no brief.

LEE, J. Givens, C. J., and Budge, Varian and McNaughton, JJ., concur.

OPINION

LEE, J.

From both an adverse judgment and a consequent order vacating an injunction, plaintiff, Winston M. Caldwell, appealed. His undertaking was conditioned "that the said appellant will pay all damages and costs which may be awarded against him on the appeal or a dismissal thereof, etc."

Respondent, Village of Mountain Home, has moved to dismiss the appeal upon the respective grounds that a transcript has not been filed within the time prescribed by law and rules 23 and 25 of this court, and that the undertaking is void for uncertainty. The time for filing the transcript expired Feb. 10, 1930. On Feb. 8th, counsel filed the transcript with the clerk, but, inasmuch as it lacked the index required by rule 14, it was by the clerk returned to him in accordance with rule 20 for "proper preparation." A de facto transcript had been filed in time, defective only in a feature not affecting its substance. The return by the clerk was not a rejection in toto, but counsel took the transcript as the clerk's bailee, the officer expecting its prompt return after the indicated correction. Under the circumstances, we see no substantial violation of either the law or rules 23 and 25.

The attack upon the undertaking would have been conclusive had it been timed prior to the legislature of 1907, which amended sec. 4807, Rev. Stats., so as to provide for objections to defects and insufficiencies within twenty days. (Martin v. Wilson, 24 Idaho 353, 134 P. 532; Clear Lake Power & Improvement Co. v. Chriswell, 31 Idaho 339, 173 P. 326; Cupples...