Mccoy v. Oldham

• Decision Date: 01 January 1873
• Citation: 1 Idaho 465
• Parties: G. W. C. Mccoy Et Al., Respondents, v. J. B. Oldham, Appellant.
• Court: Idaho Supreme Court

1 Idaho 465

G. W. C. Mccoy Et Al., Respondents, v. J. B. Oldham, Appellant.

Supreme Court of Idaho

January 1, 1873

APPEAL-UNDERTAKING ON APPEAL.-An undertaking on appeal from a judgment in the sum required by law upon a single appeal, does not make effectual an appeal from an order refusing a new trial although taken at the same time and by the same notice.

APPEAL-STATEMENT-BILL OF EXCEPTIONS-PRACTICE-Upon an appeal from a judgment without a statement or bill of exceptions, nothing can be considered except the judgment-roll; and if no error appear therein, the judgment will be affirmed.

A. Heed, for the Appellant. J. Brumback, for the Respondents.

NOGGLE C. J.,

delivered the opinion.

WHITSON and HOLLISTER, JJ., concurred in the judgment.

This action was originally commenced by the plaintiff, McCoy, a workman employed by Mullany & Binns, to work on the defendant's building in Boise City, Ada county, Idaho territory, to enforce a lien upon such building for his said work. McCoy was demurred out of court, but before that had been done, Mullany & Binns, original contractors, appeared and filed their claims as mechanic lienholders. It may be said that this is an equity case. It was tried before the court without a jury; the testimony, by the transcript appears to have been taken in open court, as in a lower case tried by the court without objection. After the trial a statement was made and settled, on which to move for a new trial, the same as in a law case.

A motion for a new trial was made, and overruled by the court. No other ruling of the court is stated, except the final decree. There is no certificate showing that any exceptions were taken; there is no bill of exceptions in the case, and there is no certificate of the judge of the district court or of his clerk, showing that the evidence has all been presented and sent to this court. No assignment of errors is in the statement or made in this court now, excepting the errors assigned on the motion for a new trial. In appealing the case to this court, the notice

of appeal specifies that the defendant appeals from the whole of the judgment made and entered against him on the twentieth day of May, 1872; and also from the decision of the judge of said court upon a motion for a new trial in said action. The notice may include both appeals, and, so far, the appellant was correct in practice.

In order to render an appeal effectual for any purpose, in any case, a written undertaking shall be executed on the part of the appellant, by at least two sureties, to the effect, etc., in a sum of money not less than three hundred dollars; or that sum must be deposited, etc.; and by section 303, on page 78 and 79 of the fifth session laws, "in all cases the undertaking or deposit may be waived by the written consent of the respondent." In this case there is no pretense that there is either a deposit or a waiving; but on the part of the appellant, it is insisted, that there is one bond in the case, which is ample in amount with good sureties.

Suppose we had the certificate of the clerk of the district court, to the effect that the appellant had taken an appeal, and that he had deposited with him the sum of three hundred dollars to pay all costs and damages that might be awarded against him on his appeal from the judgment aforesaid; and after making the deposit, for some cause, he should become doubtful about such appeal, and he should dismiss the appeal, pay up the costs and damages and then call for his deposit, and the clerk should then say to him, "In your notice of appeal you gave notice of an appeal from the order overruling the motion for a new trial, and that appeal you have not dismissed." Might not the appellant then say: "That appeal I never perfected, either by obtaining the written waiver of the respondent, making the deposit or by giving a bond that in any way refers to the appeal from that order. Consequently, under section 296, on page 136 of the second session law, the supreme court never obtained jurisdiction of that appeal. And here is your receipt for the deposit,...