Jordan v. Jordan

• Decision Date: 21 October 1954
• Docket Number: No. 8143,8143
• Parties: Neal A. JORDAN, Plaintiff-Respondent, v. Jacqueline A. JORDAN, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 669

275 P.2d 669

75 Idaho 512

Neal A. JORDAN, Plaintiff-Respondent, v. Jacqueline A. JORDAN, Defendant-Appellant.

No. 8143.

Supreme Court of Idaho.

Oct. 21, 1954.

Isaac McDougall, Jr., Gee & Hargraves, Pocatello, for appellant.

Black, Black & Oliver, Pocatello, for respondent.

PORTER, Chief Justice.

Respondent brought this action to secure a decree of divorce from appellant on the ground of extreme cruelty. Respondent also prayed in his complaint that the custody of the minor child of the parties, David A. Jordan, of the age of seven years, be determined and the community property equitably divided. Appellant filed her answer denying generally and specifically most of the allegations of the complaint and prayed that respondent's complaint be dismissed and the court make provision for the support and security of appellant and the minor child.

Trial of the cause was had before the court sitting without a jury. The court made findings of fact and conclusions of law favorable to respondent and entered judgment granting respondent a decree of divorce and awarding the custody of the minor child to appellant with reasonable provisions for visitation by respondent. The court also made division of the community property between the parties; and awarded appellant the sum of $100 per month for the support and maintenance of the child, and the sum of $175 per month for maintenance of appellant until appellant remarries or until further order of the court.

After the entry of judgment appellant made a motion to vacate and set aside the decree on the ground of alleged fraud in connection with the community property; and also filed a motion for additional attorneys' fees and suit monies. Respondent filed a motion for writ of assistance. The court overruled appellant's two motions and granted respondent's motion. Appellant has appealed from the judgment to this court. Appellant also has appealed from the order of the court denying appellant's motion to vacate and set aside the decree and appellant's motion for additional attorneys' fees and suit monies; and, apparently, has appealed from the separate order granting respondent's motion for writ of assistance.

Prior to the oral argument of this cause respondent filed a motion to dismiss the appeals from the above described orders on the ground that no undertaking for costs on appeals from said orders has been fined and no deposit of money therefor has been made with the clerk of the court, and the requirement for an undertaking therefor has not been waived. This motion to dismiss was heard prior to the presentation of the cause on its merits and is first before us for consideration.

The body of the Notice of Appeal reads as follows:

'You, And Each Of You Will Please Take Notice That the Defendant hereby appeals from that certain Judgment and Decree made and entered herein on the 17th day of February, 1954, in favor of the Plaintiff and against the Defendant, which said Judgment and Decree was made and entered by the Court sitting without a jury.

'Said defendant also appeals from the Order of the Court made and entered on the 17th day of March, 1954, denying Defendant's Motion to Vavate and Set Aside Decree, and denying Defendant's Motion for additional attorneys' fees and suit monies, and granting Plaintiff's Motion for a Writ of Assistance.

'This appeal is taken from the whole of said Judgment and Decree and Order, on questions of law and fact.' Appellant filed an undertaking for costs on appeal, the body of which is as follows:

'Whereas, the Appellant has appealed to the Supreme Court of the State of Idaho from a judgment entered in said action; and

'Whereas, the Appellant in said action is required to give an Undertaking on Appeal, not exceeding Three Hundred ($300.00) Dollars, as required by Section 11-203, Idaho Code Annotated 1932.

'Now, Therefore, in consideration of the premises the American Surety Company of New York, a corporation, duly authorized to do a surety business in the State of Idaho, does hereby undertake and promise to pay all damages and costs which may be awarded on the Appeal, or on a dismissal thereof, not exceeding the sum of Three hundred ($300.00) Dollars, towhich amount the said American Surety Company of New York acknowledges itself bound.'

Section 13-202, I.C., provides in part as follows:

'* * * The appeal is ineffectual for any purpose unless prior to or at the time of filing the notice of appeal or within five (5) days thereafter, an undertaking be filed, or a deposit of money be made with the clerk, as hereinafter provided, or the undertaking be waived by the adverse party in writing.'

Section 13-203, I.C., reads as follows:

'The undertaking on appeal must be in writing, and must be executed on the part of the appellant, by at least two sureties, 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; or that sum must be deposited with the clerk with whom the judgment or order was entered, to abide the event of the appeal: provided, that when more than one appeal in the same action, whether from the judgment and an appealable order or orders, or from two or more appealable orders, is taken at the same time, but one such undertaking or deposit for damages and costs need by filed or made. If any undertaking be insufficient or defective in any respect, such insufficiency or defect shall be deemed waived unless the respondent, within twenty days after the filing of such undertaking, shall file and serve upon the appellant or his attorney a notice, in writing, pointing out specifically the defects and insufficiencies of such undertaking. No defect or insufficiency not thus specifically pointed out shall subsequently be urged against the undertaking or the appeal. The appellant may, within five days after such service of said notice, file a new undertaking which shall be in lieu of the one previously filed.'

It is firmly established that the filing of the undertaking on appeal is jurisdictional and unless such undertaking is filed or waived the appeal must be dismissed. Marine Mart v. Kruger, Idaho, 272 P.2d 307; Farmers Equipment Co. v. Clinger, 70 Idaho 501, 222 P.2d 1077.

Respondent contends that the undertaking filed in this action refers only to the appeal from the judgment and in no way refers to or covers the appeals from the orders made after judgment. He calls our attention to Spokane Cattle Loan Co. v. Crane Creek Sheep Co., 36 Idaho 786, 213 P. 699. In such case appellant filed notice of appeal from both the judgment and the order denying motion for new trial. An undertaking very similar to the one in the present action was filed. In passing upon the motion to dismiss the appeal from the order denying the motion for new trial, this court, at 36 Idaho at pages 787-788, 213 P. 700, said:

'The recital in the first paragraph of the undertaking specifically limits the obligation of the bond to the appeal from the judgment. The second paragraph mentions the 'appeal' in the singular, which, taken in connection with the recital in the first paragraph, can only be presumed to refer to the appeal from the judgment.

'This undertaking is wholly silent with reference to the appeal from the order denying a new trial. It is therefore not a case of a defective undertaking, the defect in which might be waived by failure of the respondent to object thereto under C.S., § 7154 [now 13-203, I.C.,], but it is a case of no undertaking at all, so far as the appeal from the order denying a new trial is concerned. The sureties cannot be made liable for anything not in the bond. McCoy v. Oldham, 1 Idaho 465.

"Where an appeal is taken from a judgment, and also from an order denying a motion for a new trial, and but one undertaking on appeal is filed, in which reference is made to the judgment only, the appeal from the order must be dismissed for want of an undertaking.' Stine Lumber & Shingle Co. v. Hemenway, 32 Idaho 153, 179 P. 505, citing McCoy v. Oldham, 1 Idaho 465; Sebree v. Smith, 2 Idaho 357, 16 P. 477; Young v. Tiner, 4 Idaho 269, 38 P. 697; Weiser River Fruit Ass'n v. Feltham, 31 Idaho 633, 175 P. 583; Pacific Paving Co. v. Bolton, 89 Cal. 154, 26 P. 650.

'Under these authorities the appeal from the order denying motion for a new trial should be dismissed, and it is so ordered.'

The holding in the Spokane Cattle Loan Co. case was recognized in Geist v. Moore, 58 Idaho 149, 70 P.2d 403.

It is the contention of appellant that the undertaking filed is merely defective for uncertainty and that respondent, having failed to point out such defect or insufficiency by notice, must be held to have waived the same. Appellant cites Cupples v. Stanfield, 35 Idaho 466, 207 P. 326; Bain v. Olsen, 36 Idaho 130, 209 P. 721; T. W. & L. O. Naylor Co. v. Bowman, 36 Idaho 211, 209 P. 1071; Caldwell v. Village of Mountain Home, 49 Idaho 32, 285 P. 1020; Walker Bank & Trust Co. v. Steely, 54 Idaho 591, 34 P.2d 56; and Geist v. Moore, supra. However, in such of these cases as involved two appeals there was some reference in the undertaking to both the appeals or an uncertainty as to which appeal was covered.

See, also, Martin v. Wilson, 24 Idaho 353, 134 P. 532; Aumock v. Kilborn, 52 Idaho 438, 16 P.2d 975; Huggins v. Green Top Dairy Farms, 74 Idaho 266, 260 P.2d 407.

Appellant contends the undertaking was merely defective but she did not attempt to cure the defect by filing a good and sufficient undertaking under the provisions of Section 13-217, I.C., which reads as follows:

'If the appellant fails to furnish the requisite papers the appeal may be dismissed; but no appeal and be dismissed for insufficiency of the undertaking thereon if a good and sufficient undertaking, approved by a justice of the Supreme Court, be filed in the Supreme Court before the hearing upon motion to dismiss the appeal.'

A similar omission is noted in Marine Mart...