Farnworth v. Viet
| Decision Date | 03 May 1924 |
| Citation | 225 P. 1023,39 Idaho 40 |
| Parties | J. W. FARNWORTH, Respondent, v. SAMUEL VIET, Appellant |
| Court | Idaho Supreme Court |
APPEAL-MOTION TO DISMISS-VOID UNDERTAKING - INCOMPETENT SURETY.
1. A married woman is incompetent to sign an appeal bond for another.
2. Whether a married woman would be competent to sign an appeal bond on appeal from a judgment against her husband for which the community property would be liable, quaere.
3. Where one of the two sureties on an appeal bond is incompetent the bond is void and the appeal should be dismissed.
APPEAL from the District Court of the Fourth Judicial District, for Blaine County. Hon. H. F. Ensign, Judge.
Action for debt. Judgment for plaintiff. Appeal dismissed.
Motion to dismiss the appeal granted, with costs to respondent.
Henry M. Hall, for Appellant, files no brief.
W. A Brodhead, for Respondent.
Josephine Tauber, being a married woman, was not competent to become surety on the appeal bond in this case. (Meier & Frank Co. v. Bruce, 30 Idaho 732, 168 P. 5; Bank of Commerce v. Baldwin, 12 Idaho 202, 85 P. 497.)
Sureties on appeal bonds must be competent to enter into such an obligation. (Paxton v. Lively, 48 Ore. 135, 85 P 501; Black v. Black, 53 F. 985; State v. St. Paul 111 La. 71, 35 So. 389.)
Statutory requirements must be strictly complied with or the bond on the undertaking will be insufficient and the appeal will be dismissed on motion. (Harris v. Millege, 151 Ind 70, 51 N.E. 102.)
"An appeal bond with only one surety is not valid as a statutory bond." (Harris v. Regester, 70 Md. 109, 16 A. 386; Appeal of Bartlett, 82 Me. 210, 19 A. 170; Henderson v. Benson, 141 Mass. 218, 5 N.E. 314; Brickner v. Sporleder, 3 Okla. 561, 41 P. 726; Wenatchee Orchard & Irr. Co. v. Thompson, 60 Wash. 643, 111 P. 874; Smith v. Beard, 21 Wash. 204, 57 P. 796.)
Respondent moves to dismiss the appeal upon the ground among others that no undertaking on appeal has been given as required by C. S., secs. 7153 and 7154. The point is that one of the two sureties was a married woman and not competent to sign the bond.
The action was brought against appellant and one Tauber to recover the purchase price of certain hogs. Judgment went against both. Viet appealed; Tauber did not. Josephine Tauber, one of the two sureties, is the wife of the codefendant. Whether she would have been a competent surety on her husband's bond on appeal on the theory that the community property was liable for the debt, may be open to some question, but it is certain that she was not competent to act as surety on Viet's appeal bond. (Bank of Commerce v. Baldwin, 14 Idaho 75, 93 P. 504, 17 L. R. A., N. S., 767; Meier & Frank Co. v. Bruce, 30 Idaho 732, 168 P. 5; Overland Nat. Bank v. Halveston, 33 Idaho 489, 196 P. 217.)
The fact that the surety on an appeal bond is incompetent is ground for dismissing an appeal. (Paxton v. Lively, 48 Ore. 135, 85 P. 501.) If the statute requires two sureties an appeal will be dismissed where there is only one. (Brickner v. Sporleder, 3 Okla. 561, 41 P. 726.) In such case the bond is void and not merely defective.
The motion to dismiss the appeal is granted, with costs to respondent.
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Craig v. Lane, 6612
...cite the following authorities: Sec. 11-202 and sec. 11-203, I. C. A.; Beckstead v. Gee, 58 Idaho 758, 79 P.2d 293; Farnsworth v. Viet, 39 Idaho 40, 225 P. 1023. F. Kibler and Geo. H. van de Steeg, for Appellants. The common-law disabilities of married women have been generally removed in I......
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Miles v. Johanson
... ... fact that sureties on appellant's appeal bond have not ... justified is ground for dismissal of the appeal under C. S., ... sec. 7168. (Farnworth v. Veit, 39 Idaho 40, 225 P ... The ... finding of a jury upon a substantial conflict of evidence ... will not be disturbed, though the ... ...
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Beckstead v. Gee
...This court has held that under such circumstances the undertaking is not merely defective or insufficient but is void. (Farnsworth v. Viet, 39 Idaho 40, 225 P. 1023, principle being approved in Strickfadden v. Greencreek Highway Dist., 44 Idaho 751, 260 P. 431.) If a bond is void, only the ......
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Coffin v. Cox
...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 ......