Numbers v. Rocky Mountain Bell Telephone Co.

• Decision Date: 14 December 1900
• Citation: 63 P. 381,7 Idaho 408
• Parties: NUMBERS v. ROCKY MOUNTAIN BELL TELEPHONE COMPANY
• Court: Idaho Supreme Court

63 P. 381

7 Idaho 408

NUMBERS v. ROCKY MOUNTAIN BELL TELEPHONE COMPANY

Supreme Court of Idaho

December 14, 1900

APPEAL from District Court, Washington County.

Affirmed. Costs of appeal awarded to respondent.

Hugh E McElroy and W. E. Borah, for Appellant.

It is only necessary to consider whether the bond is sufficient to perfect the appeal. The undertaking specifies that one of the purposes for which it was given is "payment of costs on appeal." For this purpose a bond of one hundred dollars is sufficient. (Ward v. Superior Court of Marin County, 58 Cal. 519.) The law specially authorizes the giving of new sureties in place of those excepted to. (Rev Stats., sec. 4842.) In such cases the usual practice is to file a new undertaking which, it is held, relates back to filing of original bond. (Cummins v. Scott, 23 Cal 526; Fogel v. Schmalz, 83 Cal. 201, 23 P. 294.) The law does not require a surety company to justify before the justice's court. That the provisions of section 4842 of the Revised Statutes relating to justification have been modified by the provisions of the act regulating surety companies, page 337, Session Laws of 1899. In view of this law, what possible jurisdiction remained in the justice to determine the sufficiency of this surety upon a justification? It is the duty of the Secretary of State to pass upon that matter, and his conclusion is decisive. (Kreling v. Kreling, 116 Cal. 458, 48 P. 384; Boyer v. Superior Court of San Francisco, 110 Cal. 401, 42 P. 892.)

George P. Rhea, for Respondent.

The questions raised in this case concern the sufficiency of the undertakings on appeal filed, each of which is for the sum of $ 250, and the conditions being not only for payment of costs but stay of proceedings. They do not comply with the requirements of the statute. (Idaho Rev. Stats., sec. 4842; McConky v. Superior Court of Alameda County, 56 Cal. 83.) It is within discretion of court to refuse to dismiss appeal on account of the mere informality or insufficiency of the appeal bond, when the appellant will immediately give a good and sufficient bond. (Shelton v. Wade, 4 Tex. 148, 51 Am. Dec. 722.) Appellant wholly failed to have said sureties or other sureties appear before said justice, and justify within five days after notice of exceptance to their sufficiency was served; wholly failed to serve notice upon respondent, as to a time when they or other sureties would justify, and wholly failed to appear before said justice and justify either with or without notice. That, by reason of such failure the appeal must be regarded as if no such undertaking had been given. (Last eight lines of sec. 4842, Idaho Rev. Stats.; Davelin v. Post Falls Woolen Mills Co., 4 Idaho 735, 44 P. 554; Lower v. Knox, 10 Cal. 480; McCracken v. Superior Court, 86 Cal. 76, 24 P. 845; Wood v. Superior Court of Monterey County, 67 Cal. 115, 7 P. 200.) Said undertaking was not filed with said justice within thirty days after rendition of judgment as required by law. (Idaho Rev. Stats., 4838, 4841, 4842; Salt Lake Brewing Co. v. Gillman, 2 Idaho 195, 10 P. 32; Koker v. Superior Court of Colusa Co., 58 Cal. 178, 179.) Where the sufficiency of the sureties upon an undertaking on appeal from a justice's court is excepted to, the appeal cannot be perfected by filing a new undertaking without notice to the adverse party. (Wood v. Superior Court, 67 Cal. 115, 7 P. 200; Stark v. Barrett, 15 Cal. 364.)

QUARLES, J. Huston, C. J., and Sullivan, J., concur.

OPINION

QUARLES, J.

This action was commenced by the respondent against the appellant in the justice's court of West Weiser precinct, in and for Washington county; and on the twenty-sixth day of January, 1900, judgment was made and entered therein in favor of the respondent and against the appellant for $ 102.06 damages and costs, taxed at two dollars and forty cents. Thereafter, and on February 21, 1900, the appellant served and filed notice of appeal, and executed and filed undertaking on appeal in said justice's court, appealing therefrom to the district court from said justice's judgment. Thereafter, February 23, 1900, the respondent served and filed exceptions to the sufficiency of said undertaking in said justice's court, under the provisions of section 4842 of the Revised Statutes, which, inter alia, provides that "the adverse party may except to the sufficiency of the sureties within five days after the filing of the undertaking, and unless they or other sureties justify before the justice or judge from whom the appeal is taken, within five days thereafter, upon notice to the adverse party to the amount stated in their affidavit, the appeal must be regarded as if no such undertaking had been given." Thereafter, and on February 17, 1900, the appellant filed a new undertaking, in words and figures as follows, to wit:

"Whereas the defendant desires to give an undertaking for payment of costs on appeal and stay of proceedings, as provided to be given in section 4842 of the Revised Statutes of the state of Idaho: Now, therefore, we, the undersigned sureties, do hereby obligate ourselves, jointly and severally, to the said plaintiff, under said statutory obligations, in the sum of two hundred and fifty ($ 250) dollars. This is given in lieu of original undertaking excepted to.

"Dated Boise, Idaho February 26th, 1900.

"By DUDLEY HOLLAND,

"Mgr. Fidelity and Deposit Company of Maryland.

[Seal] "By H. C. WYMAN,

"Its Attorney in Fact and Member of Local Board."

This undertaking was stamped with a three-cent internal revenue stamp, which was canceled, and attested by Sherman G. King general agent. The above appears from the transcript before us to have been all of the proceedings in the justice's court. March 13, 1900, the respondent moved to dismiss the appeal in the district court upon the following grounds: "1. That the undertakings for an appeal filed by the defendant in said action are insufficient to justify an appeal as required by law, and are not such undertakings as are required to be given by section 4842 of the Revised Statutes of Idaho. 2. That said appeal, and proceedings in procuring said appeal, is irregular and imperfect, as appears from the transcript of the justice of the peace before whom said cause was tried, and the notices and undertakings filed before said justice, all of which are now filed in this court, and are a part of the record and files in this case, and the affidavit of George P. Rhea, attorney for plaintiff, and to which plaintiff refers in support of...