Coffin v. Cox

• Decision Date: 22 June 1956
• Docket Number: No. 8298,8298
• Citation: 298 P.2d 742,78 Idaho 111
• Parties: Rex T. COFFIN, Plaintiff-Respondent, v. John U. COX, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 742

298 P.2d 742

78 Idaho 111

Rex T. COFFIN, Plaintiff-Respondent, v. John U. COX, Defendant-Appellant.

No. 8298.

Supreme Court of Idaho.

June 22, 1956.

Rehearing Denied July 9, 1956.

McDevitt & McDevitt, Pocatello, for appellant.

Gee & Hargraves, Pocatello, for respondent.

ANDERSON, Justice.

This action grows out of transactions between plaintiff Rex T. Coffin, owner of a lumber yard in Arimo, Idaho, and defendant John U. Cox, manager of the yard. The plaintiff recovered judgment, from which defendant brings this appeal.

Defendant filed a notice of appeal and an undertaking February 14, 1955. The appeal bond was executed by Melvin J. Armstrong and Minnie M. Harris, a married woman living with her husband, Frank Harris. In the undertaking, Mrs. Harris swore that she was a freeholder within the State of Idaho, and was worth the sum specified ($300). No other appeal bond was filed at this time, nor within five days of the notice of appeal.

March 26, 1955, the appellant filed a supersedeas bond in compliance with our statute. The same day, the parties through their attorneys entered into a stipulation whereby the appellant agreed to pay from this amount, if it should be sufficient, all damages awarded against defendant and appellant on appeal, or on a dismissal or affirmance of the appeal.

Respondent moved for dismissal of the appeal April 4, 1955, on the ground no undertaking on appeal had been given as required by I.C. § 13-203. On April 6, 1955, Frank Harris and M. J. Armstrong signed a new undertaking on appeal.

The first question here presented is whether an appeal bond signed by a married woman, living with her husband, is merely defective, or completely void.

Idaho Code, § 13-202 provides in part:

'* * * The appeal is ineffectual for any purpose unless prior to or at the time of filing the notice of appeal or within five (5) days thereafter, an undertaking be filed, or a deposit of money be made with the clerk, as hereinafter provided, or the undertaking be waived by the adverse party in writing.'

There was no such cash deposit within five days, and no waiver, in this case.

Section 13-203 provides:

'The undertaking on appeal must be in writing, and must be executed on the part of the appellant, by at least two sureties, to the effect that the appellant will pay all damages and costs which may be awarded against him on the appeal, or on a dismissal thereof, not exceeding $300 * * *. If any undertaking be insufficient or defective in any respect, such insufficiency or defect shall be deemed waived unless the respondent, within twenty days after the filing of such undertaking, shall file and serve upon the appellant or his attorney a notice, in writing, pointing out specifically the defects and insufficiencies of such undertaking. No defect or insufficiency not thus specifically pointed out shall subsequently be urged against the undertaking or the appeal. The appellant may, within five days after such service of said notice, file a new undertaking which shall be in lieu of the one previously filed.'

Idaho has no statute specifically govening the capacity of a married woman as a surety on an appeal bond or other instrument. Under I.C. § 32-904,

'During the continuance of the marriage, the wife has the management, control and absolute power of disposition of her separate property, and may bargain, sell and convey her real and personal property, and may enter into any contract with reference to the same, in the same manner, and to the same extent, and with like effect, as a married man may in relation to his real and personal property * * *.'

However, this court, in the cases of Farnworth v. Viet, 39 Idaho 40, 225 P. 1023; Beckstead v. Gee, 58 Idaho 758, 79 P.2d 293, and Craig v. Lane, 60 Idaho 178, 89 P.2d 1008, held that a married woman may not be a surety on an appeal bond, notwithstanding the provisions of this statute. Under these decisions, an appeal bond signed by her has been held not merely defective, but void.

We are of the opinion that this rule should no longer prevail in this jurisdiction, and that such a bond is merely defective, which defect was waived by respondent's not objecting thereto within 20 days as provided by I.C. § 13-203. In addition thereto, a valid bond has been substituted. The three above-cited Idaho cases are therefore expressly overruled as far as they conflict with this opinion.

We then come to the merits of the case. Plaintiff and respondent contends that his relationship with defendant and appellant was that of employer and employee, he owning the lumber yard at Arimo, and appellant acting as his manager. Appellant contends that they were partners under an oral partnership agreement.

The action began as a complaint on an open account for money received. Defendant filed a cross-complaint for breach of an alleged partnership agreement. The complaint was later amended to include causes of action for work and labor, for money allegedly withdrawn from the business by defendant, for repayment of two loans, and for the value of a radio which the defendant was alleged to have possession of, which belonged to the plaintiff.

The court permitted the respondent to amend his second cause of action at the close of the testimony to conform to the proof, by increasing the amount claimed due from appellant.

Upon trial of the case, the jury found in favor of the plaintiff in each of the five causes of action in the exact amount asked by plaintiff in each cause of action except as to cause No. 4, which was reduced from $205.60 to $100 as the value of the radio, the verdict being for a total of $9,835.06. The trial court entered judgment for $10,927.51, which sum included interest on the various...