Denman v. Martin

• Decision Date: 10 February 1958
• Docket Number: No. 8608,8608
• Citation: 321 P.2d 606,79 Idaho 509
• Parties: Alvin DENMAN, Executor, Applicant, v. Henry S. MARTIN, District Judge, Respondent.
• Court: Idaho Supreme Court

Page 606

321 P.2d 606

79 Idaho 509

Alvin DENMAN, Executor, Applicant, v. Henry S. MARTIN, District Judge, Respondent.

No. 8608.

Supreme Court of Idaho.

Feb. 10, 1958.

Reginald R. Reeves, Idaho Falls, for applicant.

Boyd R. Thomas, Idaho Falls, for respondent.

PORTER, Justice.

On May 23, 1957, applicant obtained a judgment in the Probate Court of Bonneville County against the Western Auto Supply Company, a corporation, for the sum of $334.85. On May 29, 1957, the Western Auto Supply Company served and filed a notice of appeal from such judgment to the District Court of the Ninth Judicial District for Bonneville County.

The Western Auto Supply Company at the same time filed an undertaking on appeal reading as follows:

'Whereas, the defendant in the above-entitled action has appealed to the District Court of the Ninth Judicial District in and for the County of Bonneville, State of Idaho, from the judgment rendered in said Court in the above-entitled cause on the 23rd day of May, 1957, in favor of the above-named plaintiff and against the said defendant for $326.00 plus court costs of $8.85, a total judgment of $334.85, and

'Whereas, the appellant is desirous of suspending the execution of the judgment so appealed from, and

'Whereas, the defendant desires to give an undertaking for the aforesaid appeal pursuant to Section 17-105, Idaho Code, Anno.,

'Now, therefore, we, the undersigned sureties do hereby obligate ourselves, jointly and severally, to the said appellee under said statutory obligations in the sum of $669.70.

'Dated this 29th day of May, 1957.

'/s/ J. C. McCarty

'/s/ Clarence A. Taylor.'

Thereafter, applicant moved to dismiss said appeal on the ground that no cost bond on appeal had been filed in said action. Henry S. Martin, Judge of the Ninth Judicial District, denied such motion to dismiss and placed the cause on the trial calendar of his court. Thereupon applicant brought this original proceeding in this court for a writ of prohibition, praying that the defendant Henry S. Martin, District Judge, be restrained and prohibited from proceeding with the trial of said cause. A temporary writ of prohibition was issued and the cause set down for hearing in open court. The Western Auto Supply Company, as the real party in interest, was permitted to intervene. Oral arguments have been presented and the cause submitted to the court for final determination.

Section 17-105, I.C., provides that an appeal from the probate court is not effectual unless an undertaking be filed with two or more sureties in the sum of $100 for the payment of the costs on the appeal. It also provides that if a stay of proceedings be claimed that an undertaking be given in a sum equal to twice the amount of the judgment when the judgment is for the payment of money.

Section 12-613, I.C., reads as follows:

'General form of undertaking.--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. Such undertaking may be in form as follows:

(Title of court. Title of cause.)

'Whereas, the _____ desires to give an undertaking for (state what) _____, now, therefore, we the undersigned sureties, do hereby obligate ourselves jointly and severally, to (name who) _____ under said statutory obligations in the sum of _____ dollars.

'The sureties so signing such undertaking are bound to the full statutory obligations of the statute requiring the undertaking.'

An examination of the undertaking filed shows that it was intended to be an undertaking for appeal and also for a stay of proceedings. It is not contended that the two bonds may not be in one instrument. Wilson v. Doyle, 12 Idaho 295, 85 P. 928. However, the undertaking given lacks $100 of being in the amount which would be required to cover the $100 bond on appeal and double the amount of the judgment for stay of proceedings. The undertaking which was filed specifically says that 'the defendant desires to give an undertaking for the aforesaid appeal pursuant to Section 17-105, I.C.' It further says with reference to its obligations 'Now, therefore, we, the undersigned sureties do hereby obligate ourselves, jointly and severally, to the said appellee under said statutory obligations.' A comparison shows that this language is...