Jackson v. Barrett

• Decision Date: 21 June 1906
• Citation: 12 Idaho 465,86 P. 270
• Parties: COMMODORE JACKSON, Respondent, v. F. H. BARRETT et al., Appellants
• Court: Idaho Supreme Court

86 P. 270

12 Idaho 465

COMMODORE JACKSON, Respondent, v. F. H. BARRETT et al., Appellants

Supreme Court of Idaho

June 21, 1906

MOTION TO DISMISS APPEAL-WHERE JURISDICTION OF TRIAL COURT ATTACHES AFTER DECISION ON APPEAL-DISMISSAL OF APPEAL-SECOND APPEAL-UNDERTAKING ON APPEAL-OBLIGATION OF SURETIES.

1. Where a motion to dismiss an appeal is confessed and the court dismisses the appeal without prejudice to another appeal, the second appeal may be perfected at any time after the order of dismissal is made, regardless of whether the remittitur has been filed in the trial court or not.

2. Under the provisions of section 4809, Revised Statutes, and the surety company law, the undertaking on appeal must be executed on the part of the appellant to the effect that the appellant will pay all damages and costs which may be awarded against him on the appeal or on a dismissal thereof, not exceeding $300.

3. If in such undertaking, the sureties fail to obligate themselves to the effect that the appellant will pay all damages and costs which may be awarded against him on a dismissal of the appeal, the undertaking is insufficient and may be amended on seasonable application.

4. One who relies on technicalities must be held to observe technical rules.

(Syllabus by the court.)

APPEAL from the District Court of the Fourth Judicial District for Elmore County. Hon. Lyttleton Price, Judge.

Action to recover a money judgment. Judgment for plaintiff. Motion to dismiss appeal. Sustained.

Motion granted and the appeal dismissed, with costs in favor of the respondent.

E. M Wolfe, for Appellants.

W. C Howie, for Respondent.

Counsel cite no authorities on points decided not cited by the court.

SULLIVAN J. Ailshie, J., concurs. STOCKSLAGER, C. J., dissenting.

OPINION

SULLIVAN, J.

This cause was before this court on appeal at its 1906, February term. Counsel for respondent moved to dismiss the appeal, which motion was confessed by counsel for the appellant, and the appeal was, on the thirteenth day of February, 1906, dismissed without prejudice to another appeal. Another appeal has been taken, and counsel for respondent now moves to dismiss the appeal on two grounds: (1) That no sufficient undertaking on appeal has been filed herein; (2) That at the time this appeal was taken, to wit, on the thirteenth day of February, 1906, the district court had no jurisdiction over said case, for the reason that it had been therefore appealed to the supreme court, and the remittitur from said court had not been filed in the district court, and was not filed until the fifteenth day of February, 1906.

We will first dispose of the second contention. It appears from the records of this court that the first appeal in this case was dismissed without prejudice to another appeal on the thirteenth day of February, 1906, and that thereafter, and on that day, the remittitur of this court was issued and mailed to the clerk of the district court, from whence the appeal was taken. On said day, after said dismissal, counsel for appellant prepared and served his notice of appeal on counsel for respondent, and on the same day filed an undertaking on appeal. It is contended by counsel for respondent that the jurisdiction of the district court did not attach until the remittitur was filed on the fifteenth day of February, and for that reason the appeal was prematurely taken. In other words, he contends that this court had jurisdiction of said case until the remittitur was actually filed in the trial court. In support of that contention, he cites Hazard v. Cole, 1 Idaho 276, where it is said at page 305: "The general rule seems to be well settled that this court loses jurisdiction of a case when the remittitur has been sent to and filed in the court below." He cites in support thereof Grogan v. Ruckle, 1 Cal. 193; Leese v. Clark, 20 Cal. 387; Rowland v. Kreyenhagen, 24 Cal. 52. The court then further says: "This general rule rests, however, on the supposition that all the proceedings have been regular, and that no fraud or imposition has been practiced upon the court or opposite party; for if such appears to have been the case, the appellate court will assert its jurisdiction, and recall the case." Counsel also cites Hosack v. Rogers, 7 Paige 108, and Burckle v. Luce, 3 How. Pr. 236. In the latter case the court held that it had the jurisdiction of a case until the remittitur was filed with the clerk of the court below.

In Anthony v. Grand, 99 Cal. 602, 34 P. 325, the supreme court of California held that where an appeal was dismissed one day and a second appeal taken on the next day, the latter should not be dismissed on the ground that a prior appeal was then pending. In Sligh v. Shelton S.W. R. Co., 20 Wash. 16, 54 P. 763, the supreme court of Washington held that an appeal perfected on a second notice of appeal was not objectionable because there was no formal order of dismissal of the first appeal; and the same court in Griffith v. Maxwell, 20 Wash. 403, 55 P. 571, held that a person, by giving a premature notice of appeal and filing an appeal bond and abandoning it, is not deprived of the right to appeal on a second notice seasonably given, though there is no formal dismissal of the first appeal.

Where, as in the case at bar, counsel for respondent moves to dismiss the appeal, and such motion is confessed by the opposing counsel and allowed by the court, and an order dismissing the appeal without prejudice is made, a new appeal may be perfected as soon as the order of dismissal is made.

It is evident in this class of cases, when an appeal is dismissed without prejudice, that another appeal may be taken, if the time for taking an appeal has not already expired. It might occur that the time for another appeal would expire on the next day after the appeal was dismissed, and if the party was not permitted to make such appeal until after the remittitur was filed, he would lose his right of appeal. While, as a general rule, a trial court should not take jurisdiction and do anything in a case that has been appealed until the remittitur is filed in that court, in a case where a dismissal of the appeal is made without prejudice to another appeal, such an appeal may be taken immediately after the dismissal is granted. This class of cases is an exception to the general rule stated in Hazard v. Cole, 1 Idaho 276.

The next ground of the motion goes to the sufficiency of the undertaking on appeal. The undertaking is for costs on appeal and also for a stay of execution of the judgment. That part of the undertaking containing the obligation of the sureties to pay the damages and costs is as follows: "Now therefore, in consideration of the premises and of such appeal, we, the undersigned, R. P. Chattin, Mountain Home. Elmore county, Idaho and C. Hein of Mountain Home, Idaho do hereby jointly and severally undertake and promise on the part of the appellants, that the same appellants will pay all damages and costs which may be awarded against them on the appeal not exceeding three hundred dollars ($ 300), to which amount we acknowledge ourselves jointly and severally bound." It will be observed from that quotation that "the sureties obligate themselves to pay all damages and costs which may be awarded against them (appellants) on the appeal not exceeding $ 300." The question arises whether that clause is a sufficient compliance with the provisions of section 4809, Revised Statutes, which requires the undertaking on appeal to be executed "to the effect that the appellant will pay all damages and costs which may be awarded against him on an appeal or on a dismissal thereof." Would it be contended that said undertaking is sufficient, if it was to the effect that the appellant would pay all damages and costs which may be awarded against him "on a dismissal" of such appeal? I think not. There are clearly two things that the sureties must obligate themselves to do, and the first is, they must undertake and promise on the part of the appellant that he will pay all damages and costs which may be awarded against him on appeal; and second, that the appellant will pay all damages and costs which may be awarded against him on a dismissal of the appeal; and if...