Martin v. Wilson

• Decision Date: 21 August 1913
• Citation: 24 Idaho 353,134 P. 532
• Parties: JAMES A. MARTIN, Respondent, v. MARY WILSON, Appellant
• Court: Idaho Supreme Court

134 P. 532

24 Idaho 353

JAMES A. MARTIN, Respondent, v. MARY WILSON, Appellant

Supreme Court of Idaho

August 21, 1913

[Copyrighted Material Omitted]

Rehearing denied.

SULLIVAN J. Ailshie, C. J., and Stewart, J., concur.

OPINION

SULLIVAN, J.

A petition for rehearing has been filed in this case and a brief of considerable length has been filed by the attorneys for respondent.

The first question discussed in said brief is the ruling of this court on the motion to dismiss the appeal on the ground that a proper bond on appeal had not been filed. There were two appeals--one from the judgment and the other from an order denying a new trial--and the bond given simply refers to the "appeal" and not to the "appeals," and under the former holding of this court said bond was void for uncertainty, under the provisions of sec. 4809, Rev. Codes. Those decisions holding that such a bond was not sufficient were rendered prior to the amendment of said section by the laws of 1907, p. 134. That part of said section, as amended, particularly applicable to the question here under consideration, is as follows:

"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, are taken at the same time, but one such undertaking or deposit for damages and costs need be 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."

In the case at bar, the insufficiency of, or defect in, said bond was waived under the provisions of said section, as the respondent did not within twenty days after the filing of such undertaking file and serve upon the appellant, or his attorney, a notice in writing pointing out specifically the defect or insufficiency of such undertaking. It also appears that an undertaking has been filed curing the defects in said...