Kelly v. Leachman

• Court: Idaho Supreme Court
• Writing for the Court: SULLIVAN, C. J.
• Citation: 5 Idaho 521,51 P. 407
• Decision Date: 18 November 1897
• Parties: KELLY v. LEACHMAN

51 P. 407

5 Idaho 521

KELLY
v.
LEACHMAN

Supreme Court of Idaho

November 18, 1897

APPEAL-DISMISSED FOR WANT OF UNDERTAKING.-Where appeal is taken both from the judgment and the order overruling a motion for a new trial, an undertaking reciting that appellants will pay all damages and costs that may be awarded against them on the "appeal" is void for uncertainty, and the appeal will be dismissed.

(Syllabus by the court.)

APPEAL from District Court, Nez Perces County.

Motion granted, and appeal dismissed.

Eugene O'Neill, for Appellants.

The motion of respondent is to dismiss the appeal. It is based on the "ground that the undertaking on appeal . . . . is insufficient and void for uncertainty." The condition portion of the bond is as follows: "Now, therefore, in consideration of the premises and of such appeal from said judgment and from said order, we, the undersigned residents of the county of Nez Perces, in the state of Idaho do hereby jointly and severally undertake and promise on the part of appellant that the said appellants will pay all damages and costs which may be awarded against them on the appeal, or on a dismissal thereof, not exceeding $ 300, to which amount we acknowledge ourselves jointly and severally bound." The objection in notice is that the undertaking on appeal is insufficient and void for uncertainty. This principle is too general to require any authorities on the proposition. It has been held to objections to appeal bonds, and among others in the case of Casey v. Peebles, 13 Neb. 7, 12 N.W. 840; Swasey v. Adair, 83 Cal. 136, 23 P. 284; Dyer v. Bradley, 88 Cal. 590, 26 P. 511; Williams v. Dennison, 86 Cal. 430, 25 P. 244. What interpretation is to be placed on the words and terms of this undertaking as it stands? The singular includes the plural. (Rev. Stats., sec. 16; 2 Wharton on Contracts, sec. 667.) The intention of the parties is to control. (11 Am. & Eng. Ency. of Law, p. 511, note 4.) The whole contract is to be read together. (11 Am. & Eng. Ency. of Law, 515; 2 Parsons on Contracts, 501, 502; 2 Wharton on Contracts, sec. 262; 1 Wharton on Contracts, sec. 210.) Moreover, our legislature has indicated in its act of February 14, 1895 (Sess. Laws 1895, p. 18), an intention to do away with strict construction of bonds, and an intention to bind sureties more stringently and completely than under the former statute. In California amendments and new bonds have been allowed. The court is disposed to be technical. (Williams v. Dennison, 86 Cal. 430, 25 P. 244; Webb v. Trescony, 76 Cal. 621, 18 P. 796; Granger v. Robinson, 114 Cal. 631, 46 P. 604; Swain v. Graves, 8 Cal. 550.) In Montana amendments of bonds and filing of new bonds allowed under statutes like our own. (Woodman v. Calkins, 12 Mont. 456, 31 P. 63; Territory v. Milroy, 7 Mont. 559, 19 P. 209.) In Nevada one appeal bond on an appeal from several orders was held sufficient. (Edgecomb v. His Creditors, 19 Nev. 149, 7 P. 533.) In Oregon a new bond may be filed in the appellate court on reasons shown why bond was not filed in the beginning. (Hawthorne v. East...