Foresman v. Board of Commissioners

• Court: Idaho Supreme Court
• Writing for the Court: AILSHIE, J.
• Citation: Foresman v. Board of Commissioners, 11 Idaho 11, 80 P. 1131 (Idaho 1905)
• Decision Date: 10 May 1905
• Parties: FORESMAN v. BOARD OF COMMISSIONERS

80 P. 1131

11 Idaho 11

FORESMAN v. BOARD OF COMMISSIONERS

Supreme Court of Idaho

May 10, 1905

APPEAL from a judgment of the District Court of Nez Perce County rendered on appeal from an order of the Board of Commissioners of Nez Perce County. Honorable Edgar C. Steele Judge. Appeal dismissed.

Appeal dismissed, with costs to respondents.

Bender & Lingenfelter, for Appellant, cite no authorities upon the point decided.

B. S Crow and Miles S. Johnson, for Respondent, file no brief.

AILSHIE J. Stockslager, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

When this case was called for oral argument the respondent filed and presented a motion to dismiss the appeal, on the ground that no undertaking on appeal was ever filed in the case. The appeal was originally taken from an order of the board of county commissioners of Nez Perce county, and the matter was heard in the district court, and the order of the board of commissioners was there affirmed, and this appeal was then taken from the judgment of the district court affirming the order of the board of commissioners. After hearing counsel for the respective parties on this motion the same was granted, and the appeal was dismissed. Owing to the apparent confusion among some of the prior decisions of the court on this specific question, we have thought it best to file an opinion in this case and definitely define the views of the court as to the necessity for giving an undertaking on an appeal in such case. In Great Northern Ry. Co. v. Kootenai County, 10 Idaho 379, 78 P. 1078, it was held that the giving of an undertaking on appeal from an order of the board of commissioners to the district court is not jurisdictional, and that an undertaking in such case can be demanded only after the judge of the district court has made his order requiring such undertaking and fixing the amount thereof. Upon that point there is no uncertainty in the decisions. On the question, however, as to the necessity for an undertaking upon appeal in such cases from the district court to the supreme court, there is a lack of certainty in the decisions of this court. In Ravenscraft v. Board of Commissioners, 5 Idaho 178, 47 P. 942. it was suggested that the statute did not contemplate the giving of an undertaking on appeal from the board of commissioners to the district court, or on appeal from the district court to the supreme court, unless for reasons mentioned in the statute the court should make an order requiring such undertaking. In Davis v. Elmore County, 9 Idaho 764, 75 P. 910, an appeal was dismissed for failure to give an undertaking, and it was there suggested that an undertaking on appeal is essential in all cases where the appeal is taken for the purpose of protecting the appellant's individual rights. In the two latter cases, it does not appear that the court's attention was ever called to two provisions of the statute which we think conclusive on this question, and the application of which would give a definite rule to be followed in the prosecution of appeals in such cases. Those acts were both passed in March, 1895. By the provisions of an act approved March 6, 1895 (Sess. Laws 1895, p. 52), sections 1776 to 1779, inclusive, Revised Statutes, were amended to authorize appeals from orders of a board of county commissioners, and section 1779 provided...