Healy v. Taylor

• Decision Date: 30 August 1923
• Citation: 218 P. 190,37 Idaho 749
• Parties: WILLIAM A. HEALY and FRANK S. HEALY, Co-partners Doing Business at Portland, Oregon, Under the Firm Name and Style of HEALY BROTHERS, Respondents, v. ROBERT F. TAYLOR, Doing Business at Nampa, Idaho, Under the Firm Name and Style of GOLDEN RULE STORE, Appellant
• Court: Idaho Supreme Court

218 P. 190

37 Idaho 749

WILLIAM A. HEALY and FRANK S. HEALY, Co-partners Doing Business at Portland, Oregon, Under the Firm Name and Style of HEALY BROTHERS, Respondents, v. ROBERT F. TAYLOR, Doing Business at Nampa, Idaho, Under the Firm Name and Style of GOLDEN RULE STORE, Appellant

Supreme Court of Idaho

August 30, 1923

APPEAL AND ERROR-UNDERTAKING ON APPEAL-WHEN APPEAL WILL BE DISMISSED.

If the undertaking on appeal is filed before the notice of appeal is served, the appeal is not effectual for any purpose, and it must be dismissed.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Bertram S. Varian, Judge.

Respondents move to dismiss appeal. Motion granted.

Appeal dismissed, with costs to respondents.

G. W Lamson and Rhodes & Partridge, for Respondents.

"An undertaking on appeal filed before the service of notice of appeal is insufficient and does not perfect the appeal and in such case the appeal will be dismissed on motion." ( Wilson v. Bartlett, 7 Idaho 269, 62 P. 415; Clark v. Lowenberg, 1 Idaho 654; People v Hunt, 1 Idaho 371; Little v. Jacks, 68 Cal 343, 8 P. 856, 9 P. 264, 11 P. 128; Iverson v Jones, 2 Cal. Unrep. 437, 5 P. 626; Laurendeau v. Fugilli, 16 Wash. 367, 47 P. 759; Hines v. Darl, 22 Mont. 507, 57 P. 88.)

F. W. Byrd, for Appellant.

C. S., sec. 7154, when considered in connection with sec. 7153, provides the way to avoid questions of this kind from interrupting the court after the entire record, at great expense, has been procured and submitted. This view is supported by Zienke v. Northern P. Ry. Co., 7 Idaho 746, 65 P. 431, and the same case eliminates any possibility of a contention that there was no undertaking at all, and if it was in fact an undertaking respondent has waived all objection thereto. (King v. Seebeck, 20 Idaho 228, 118 P. 292.)

WILLIAM A. LEE, J. Budge, C. J., and McCarthy and Dunn, JJ., concur.

OPINION

WILLIAM A. LEE, J.

--Respondents move to dismiss the appeal in this cause on the ground that an undertaking on appeal was not given as required by C. S., sec. 7153. It is conceded that the only undertaking given was executed on December 30, 1922, and that the notice of appeal was served on respondents on February 16, 1923, and filed on February 20, 1923. C. S., sec. 7153, provides that an appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered a notice stating the appeal from the same, or some specific part thereof, and serving a similar notice on the adverse party or his attorney. The order of service is immaterial, but the appeal is ineffectual for any purpose unless, within five days after services of the notice of appeal an undertaking be filed or a deposit of money be made with the clerk, or the undertaking be waived by the adverse party in writing. In the instant case, a deposit of money was not made, nor was the undertaking waived by the adverse party. The only question presented by the record is whether or not the undertaking filed some fifty-two days before the notice of appeal was served and filed with the clerk is a sufficient compliance with this provision of the statute.

In Clark v. Lowenberg, 1 Idaho 654, this section of the statute, which was then section 438 of the Civil Practice Act of the Eighth Territorial Session, was first construed, and the...