Libby v. Spokane Valley Land & Water Co.

• Decision Date: 30 November 1908
• Citation: 15 Idaho 467,98 P. 715
• Parties: I. A. LIBBY, Respondent, v. SPOKANE VALLEY LAND AND WATER COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

98 P. 715

15 Idaho 467

I. A. LIBBY, Respondent, v. SPOKANE VALLEY LAND AND WATER COMPANY, a Corporation, Appellant

Supreme Court of Idaho

November 30, 1908

APPEAL-JUSTICE'S COURT-UNDERTAKING-STAY OF PROCEEDINGS-BILL OF EXCEPTIONS-SURETY BONDS-JUSTIFICATION.

1. The certificate of the trial judge certifying to the different papers and documents used upon a motion to dismiss an appeal although incorporated into the record and designated as a bill of exceptions, is not strictly a bill of exceptions, but is a certificate of identification under the statute, as to the papers used upon the hearing of the motion, and will be considered only as such certificate.

2. Under Rev. Stat., sec. 4842, in order to effect an appeal and stay the judgment appealed from upon appeal from the justice's court, an undertaking on appeal must be given for $100, to cover costs of appeal, and in an additional sum equal to twice the amount of the judgment including costs.

3. Where an undertaking on appeal is not given to cover the costs of the appeal from the justice's court to the district court, on motion, the appeal will be dismissed.

4. Where it clearly appears from the face of an undertaking that it was the intention of the appellant to give a bond in double the amount of the judgment and costs, for the purpose of staying the judgment, such undertaking will not be considered sufficient as an undertaking on appeal.

5. Where an undertaking on appeal, from a justice's court to the district court, is signed by a surety company, and exceptions to the surety are filed, under the provisions of sec. 4842 of the Rev. Stat., such surety company is required to justify within the time and upon notice, as prescribed in such section.

6. The presentation and filing with such justice of the notice or a certified copy thereof, given by the state insurance commissioner to the county recorder of the several counties of the state, certifying that such company is qualified under the laws of this state, to do business, is a sufficient justification under the statute.

(Syllabus by the court.)

APPEAL from the District Court of the First Judicial District for the county of Kootenai. Hon. W. W. Woods, Judge.

An action to recover debt. Appeal to the district court from a justice's court. Appeal dismissed. Appeal to this court from the order of dismissal. Judgment affirmed.

Costs awarded to respondent.

Albert Allen and Herman H. Taylor, for Appellants.

The undertaking in the case at bar is identical with the undertaking considered in the case of Jones v. Superior Court, 151 Cal. 589, 91 P. 505, and we submit that every word of the decision in that case is applicable to this case. The undertaking follows the statute completely, and should be held sufficient.

We contend that when an undertaking on appeal is signed by a surety company under sec. 9 of the amended act (Sess. Laws 1905, p. 398), there is no such thing as requiring the sureties to justify under the provisions of sec. 4842, and that the court was bound to accept the certified copy of the notice of the insurance commissioner as a sufficient justification of the surety.

Ezra R Whitla, for Respondents.

Not only must the party attempting to justify on a surety company bond show that the company has authority to do business in the state, but where the bond is signed simply by the attorney in fact, or agent of the company, and not by the regular officers thereof, the justification must be accompanied by evidence showing that such agents are duly authorized to execute such an undertaking. (Numbers v Rocky Mountain Bell Telephone Co., 7 Idaho 408, 63 P. 381.)

The above case is just as applicable under the statute of 1905 as under the statute of 1899, as the meanings of the two are identical, although the wording is slightly different.

The statute of 1905 did not repeal sec. 4842, Rev. Stat., but was an accumulative statute. An undertaking is to be strictly construed in favor of the sureties when an action is brought on the undertaking. "The sureties are bound by the precise terms of their undertaking, and not otherwise." (Kelly v. Leachman, 5 Idaho 521, 51 P. 407.) If the undertaking in the case at bar is good for any purpose it must be for a stay of proceedings, as that is what the same is given for, and not being of a sufficient amount to cover both the costs of appeal and the stay of proceedings, it is of no effect whatever. (Wilson v. Doyle, 12 Idaho 295, 85 P. 928; McConky v. Superior Court, 56 Cal. 83.)

STEWART, J. Ailshie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

The respondent recovered a judgment against the appellant, before T. E. Hedal, justice of the peace of Coeur d'Alene precinct, Kootenai county, Idaho, for the sum of $ 190 and $ 16 costs. The appellant appealed to the district court, from said judgment and filed in said justice's court an undertaking on appeal as follows:

"KNOW ALL MEN BY THESE PRESENTS: That Whereas the Spokane Valley Land & Water Company, defendant in the above-entitled action, is about to appeal to the District Court of the First Judicial District of the State of Idaho, in and for the County of Kootenai, from the judgment made and entered against the defendant in the above-entitled action in said Justice Court, in favor of the Plaintiff in said action, on the 4th day of January, 1908, for the sum of One Hundred and Ninety ($ 190.00) Dollars damages and the sum of Sixteen ($ 16.00) Dollars costs, and is desirous of staying the proceedings upon said judgment.

"NOW, THEREFORE, in consideration of the premises and of such appeal, the undersigned, The Fidelity and Deposit Company of Maryland, a corporation, authorized to execute such bonds in the State of Idaho, does hereby undertake and promise on the part of the appellant, to and with the defendant in said action, in the sum of Four Hundred and Twelve ($ 412.00) Dollars, being a sum equal to twice the sum of said Judgment and Costs, that the said Spokane Valley Land & Water Company, appellant, will pay the amount of said Judgment appealed from, and all costs if the appeal be withdrawn or dismissed, or the amount of any judgment and all costs that may be recovered against it in the action in the District Court, not exceeding the said sum of Four Hundred Twelve ($ 412.00) Dollars." This undertaking was signed as follows: "Fidelity & Deposit Co. of Maryland, by Jas. A. Williams, its attorney in fact. Attest: A. V. Chamberlain, Agent, Coeur d'Alene, Idaho. (Corporate Seal.)"

The notice of appeal and undertaking were filed with the justice on January 11, 1908 and on January 15, 1908, the plaintiff, respondent here, filed and served his exceptions to the undertaking on appeal, and to the sufficiency of the surety, and requiring the surety to appear and justify, as provided by sec. 4842, Rev. Stat. On January 21, 1908, the appellant filed with the justice of the peace a certified copy of the certificate of the state insurance commissioner, showing that the Fidelity and Deposit Company of Maryland had complied with the laws of Idaho and was authorized to become surety upon bonds in the state. After the filing of this certificate, the justice approved the undertaking on appeal, and the record was certified up to and filed in the district court. In the district court a motion was made by the respondent to dismiss the appeal. The principal grounds urged were, that the undertaking filed in the justice's court was not a sufficient undertaking under the statute; that the plaintiff, having served notice of the exception to the surety upon said undertaking, and the respondent not having justified said surety, as required by law, there was no undertaking on appeal filed in said justice's court. Also, that there was no showing or evidence presented to the justice's court, that the agents of said surety company, purporting to have signed the appeal bond, had authority to sign the same. The trial court sustained the motion and dismissed the appeal. This appeal is from that judgment.

Three questions are presented: First,--Was the undertaking on appeal, from the justice's court, a sufficient undertaking under the statute? Second,--Was the appellant required by law to have the surety upon his undertaking on appeal, appear and justify before the justice of the peace? Third,--Was sufficient proof made to the justice's court showing that the agents, executing such undertaking on appeal, had authority to execute the same?

In this court respondent moves to strike out certain portions of the transcript. The portions to which the motion is addressed consist of what is denominated "exceptions to the order of the court dismissing the appeal." This is in the form of a bill of exceptions, and counsel for respondent contends that it should be stricken out for the reason that it does not show that any service was ever made upon the respondent or his counsel. While this document is denominated exceptions to an order, and is in the general form of a bill of exceptions, yet under the statute it is not strictly a bill of exceptions. It is merely a certificate or statement of the trial judge of the papers considered by him at the hearing of the motion to dismiss the appeal in the district court. This paper enumerated by proper identification the different documents and papers used and considered by the trial court upon the hearing of the motion to dismiss the appeal. It was necessary to identify in some form the papers and documents so considered by the trial court. (Bonner v. Powell, 7 Idaho 104, 61 P. 138; Dougal v. Eby, 11 Idaho 789, 85 P. 102; Steve v. Bonners Ferry Lumber Co., 13 Idaho 384, 92 P. 363; Doust v. Rocky Mountain Bell Telephone Co., 14 Idaho 677, 95 P. 209.) This could be done, either by certificate of the...