Gonzaga University v. Masini

• Decision Date: 31 March 1927
• Docket Number: 4974
• Citation: 255 P. 413,44 Idaho 113
• Parties: GONZAGA UNIVERSITY, a Corporation, Appellant, v. LULU MASINI, and LULU MASINI, as Administratrix of the Estate of CAESAR MASINI, Deceased, Respondent
• Court: Idaho Supreme Court

255 P. 413

44 Idaho 113

GONZAGA UNIVERSITY, a Corporation, Appellant, v. LULU MASINI, and LULU MASINI, as Administratrix of the Estate of CAESAR MASINI, Deceased, Respondent

No. 4974

Supreme Court of Idaho

March 31, 1927

APPEAL AND ERROR-JUDGMENT FOLLOWING DECISION-WHEN NOT APPEALABLE - UNDERTAKING ON APPEAL - VALIDITY - APPEALABLE ORDER.

1. Where judgment contained nothing but what would necessarily follow from supreme court's judgment reversing former judgment, no appeal will lie therefrom.

2. Where attack is made on appeal bond on ground that it is in violation of C. S., secs. 5008, 5009, and 5103, requiring foreign surety bond to be written only through licensed agents residing in state, appellant has duty of justifying by producing documentary proof of authority, and, on failure to do so, loses protection of his bond.

3. Order of court denying motion for disallowance of defendant's memorandum of costs is appealable, precluding appeal from subsequent order apparently made through inadvertence denying such motion.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. W. F. McNaughton, Judge.

Motion to dismiss appeals. Sustained.

Motion to dismiss both appeals sustained. Costs to respondent.

James F. Ailshie, for Respondent.

The pretended undertaking on appeal and supersedeas bond was absolutely void. (C. S., secs. 5008, 5009, 5103; Numbers v. Rocky Mountain Bell Tel. Co., 7 Idaho 408, 63 P 381.)

Lynn W Culp, for Appellant.

The undertaking is not defective in form or insufficient either as an appeal bond or supersedeas. (Muncey v. Security Ins. Co., 42 Idaho 782, 247 P. 785.)

T. BAILEY LEE, J. Wm. E. Lee, C. J., and Budge and Givens, JJ concur. Taylor, J., did not sit.

OPINION

T. BAILEY LEE, J.

Plaintiff appealed from "the whole and every part" of a judgment made and entered against it and in favor of defendants by the district court of Kootenai county on October 6, 1926, and from the order of the court signed on December 9th and filed on December 11, 1926, denying plaintiff's motion to strike and disallow defendants' memorandum of costs and disbursements.

Respondents move to dismiss both appeals, contending that the judgment appealed from is one entered in conformity with the opinion of this court heretofore rendered in this cause in 42 Idaho 660, 249 P. 93, reversing the judgment of the lower court; that the undertaking on appeal was executed without authority and is null and void, and that the order denying plaintiff's motion to strike defendants' cost bill is not appealable.

No transcript or brief on appeal has as yet been filed in this court. In their brief upon the motion to dismiss, respondents aver that with respect to the judgment appealed from "no other or different judgment could have been entered and conformed with the legal effect of the opinion of this court as entered upon the first appeal and reported in 42 Idaho 660." Appellant submits no particular wherein such judgment departs from the views expressed in the reversing opinion, and is absolutely silent upon the issue. A certified copy of the judgment accompanies the motion, and with it we find no fault. There being nothing in the judgment but what would necessarily follow this court's former judgment, no appeal will lie. (Benewah Creek Improv. Land & Logging Co. v. Milwaukee Lbr. Co., 43 Idaho 529, 253 P. 625.) The undertaking on appeal shows on its face that it was executed by the nonresident president and vice-president of a New York corporation, and countersigned by C. N. Woods, designated as "Coeur d' Alene Agent." The only record of the company's having appointed local agents is a power of attorney filed by the surety company in the county recorder's office on November 8, 1921. The name of C. N. Woods does not appear therein. Defendant duly excepted to the sufficiency of the undertaking, evidently relying upon the language of Numbers v. Rocky Mountain etc. Tel. Co., 7 Idaho 408, 63 P. 381:

"It is argued on behalf of the appellant that the execution of said surety bond in lieu of the original undertaking on appeal answered the requirements of the statute as to justification of sureties upon the original undertaking or new sureties, for which reason the district court erred in dismissing the appeal. We do not think so. Under the provisions of the act of February 23, 1899 (see Acts 1899, p 337), surety companies who comply with the requirements of said act are qualified to execute undertakings upon appeal. But when an undertaking executed by such surety company is offered in an inferior court in lieu of an original undertaking on appeal from such court to the district court, which has been excepted to on the ground of insufficiency, it must be accompanied by prima facie evidence showing that the surety company which executes it has complied with the provisions of the act of ...