Richardson v. King

• Decision Date: 12 May 1933
• Docket Number: 5994
• Parties: FRED L. RICHARDSON and JAY LEONARD, Respondents, v. WILLIAM T. KING, Appellant
• Court: Idaho Supreme Court

22 P.2d 134

53 Idaho 134

FRED L. RICHARDSON and JAY LEONARD, Respondents, v. WILLIAM T. KING, Appellant

No. 5994

Supreme Court of Idaho

May 12, 1933

APPEAL AND ERROR-UNDERTAKING ON APPEAL, SUFFICIENCY OF-FAILURE OF SURETIES TO JUSTIFY-DISMISSAL.

1. On appeal from decree in suit originally filed in district court, statutory provisions relating to appeal from judgment rendered on appeal held inapplicable (I. C. A., sec. 11-213).

2. Where respondents filed exception to sufficiency of sureties on undertaking on appeal, and sureties did not justify undertaking held ineffectual, warranting dismissal of appeal (I. C. A., secs. 11-202, 11-203, 11-210, 11-217).

3. Mandatory provisions of statutes relating to undertaking on appeal are jurisdictional (I. C. A., secs. 11-202, 11-203, 11-210, 11-217).

APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. Guy Stevens, Judge.

Suit to quiet title. Judgment for plaintiffs. Motion to dismiss appeal granted.

Appeal dismissed. Costs awarded to respondents.

A. A Merrill, for Appellant.

E. W Whitcomb, for Respondents.

MORGAN, J. Budge, C. J., and Givens, Holden and Wernette, JJ., concur.

OPINION

MORGAN, J.

This is an appeal from a decree in a suit to quiet title. Respondents moved to dismiss the appeal because the sureties on the undertaking on appeal failed to justify as required by statute; also on the ground that the certificate of the clerk of the court attached to the transcript does not conform to the requirements of Idaho Code Annotated, secs. 11-213, and 11-216.

Section 11-213 requires appellant to furnish this court, on appeal from a judgment rendered on an appeal, or from an order, except an order granting or refusing a new trial, a copy of the notice of appeal, of the judgment or order appealed from, and of the papers used on the hearing in the court below.

Section 11-216 requires that copies included in the transcript be certified to be correct by the clerk or the attorneys, and that the transcript contain a certificate that an undertaking on appeal in due form has been properly filed, or a stipulation of the parties waiving an undertaking.

This being an appeal from a decree in a suit filed originally in the district court, sec. 11-213 has no application to it. The certificate is in the usual form in such cases and is sufficient.

Section 11-202 is as follows:

"An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered, a notice stating the appeal from the same, or some specific part thereof, and serving a similar notice on the adverse party, or his attorney. The order of service is immaterial, but the appeal is ineffectual for any purpose unless within five days after service of the notice of appeal, an undertaking be filed, or a deposit of money be made with the clerk, as hereinafter provided, or the undertaking be waived by the adverse party in writing."

Section 11-203 provides that the undertaking must be executed on the part of appellant by at least two sureties to the effect that he will pay all damages and costs which may be awarded against him on appeal, or a dismissal thereof, not exceeding $ 300, or that sum must be deposited with the clerk with whom the judgment or order is entered, to abide the event of the appeal. If the undertaking be insufficient or defective in any respect, such insufficiency or defect shall be deemed waived unless respondent, within twenty days after the filing of such undertaking, file and serve upon appellant or his attorney a notice, in writing, pointing out specifically the defects and insufficiencies of such undertaking. Appellants may, within five days after such service of said notice, file a new undertaking which shall be in lieu of the one previously filed.

Section 11-210 provides that the adverse party may except to the sufficiency of the sureties any time within thirty days after the filing of such undertaking, and unless they or other sureties, within twenty days after appellant has been served with notice of such exceptions, justify before a judge of the district court, or the probate judge of the county, upon five days' notice to respondent of the time and place of justification, the appeal must be regarded as if no such undertaking had been given.

Section 11-217 provides:

". . . . no appeal can be dismissed for insufficiency of the undertaking thereon if a good and sufficient undertaking, approved by a justice of the supreme court, be filed in the supreme court before the hearing upon motion to dismiss the appeal."

An undertaking on appeal, in this case, executed by J. H. Beach and Sheldon Edwards, as sureties, was filed in the office of the clerk of the district court on January 24, 1933.

Exception to the sufficiency of the sureties by counsel for respondent was filed in the office of the clerk of this court January 31, 1933,...