Schiller v. Small
| Decision Date | 06 April 1895 |
| Citation | 40 P. 53,4 Idaho 422 |
| Parties | SCHILLER v. SMALL AND PETERS v. SMALL |
| Court | Idaho Supreme Court |
APPEAL-UNDERTAKING VOID FOR UNCERTAINTY.-Where the appeal is taken from both the judgment and order denying a motion for a new trial, and the undertaking recites that it is given on such appeal without designating which, it is void for uncertainty, and the appeals will be dismissed on motion.
APPEAL from District Court, Shoshone County.
Motion dismissed, with costs to respondents.
William H. Clagett, W. T. Stoll and John R. McBride, for Appellants.
A. G. Kerns and W. W. Woods, for Respondents.
No briefs filed on motion to dismiss.
These are appeals from the same judgment and order denying motion for new trial. A motion to dismiss in each case is made upon the grounds: 1. That the appeal was not taken in time; 2. That no undertaking on appeal has been filed.
The action was for a foreclosure of a mortgage. Decree was entered June 27, 1893. Notice of appeal was filed on June 29, 1894, and served on July 21, 1894. The appeal was not taken within the year prescribed by statute. The appeal was taken from both the judgment and the order denying motion for a new trial. The undertaking is conditioned for the payment of all damages and costs which may be awarded against appellants "on the appeal," without designating which appeal. This question has been so often and so recently decided by this court that it is strange we should be again called upon to repeat the decision. (McCoy v. Oldham, 1 Idaho 465; Mathison v. Leland, 1 Idaho 712; Eddy v. Van Ness, 2 Idaho 101, 6 P. 115; Cronin v. Mining Co., 3 Idaho 438, 32 P. 53.) Motion to dismiss allowed, with costs to respondents.
To continue reading
Request your trial
-
Unfried v. Libert
... ... Oldham, 1 Idaho 465; Cronin v. Bear Creek G. M ... Co., 2 Idaho 1146, 3 Idaho 438, 32 P. 53; Schiller ... v. Small, 4 Idaho 422, 40 P. 53; Robson v ... Colson, 9 Idaho 215, 72 P. 951; Smith v. American ... Falls Co., 15 Idaho 89, 95 P. 1059.) ... ...
-
Martin v. Wilson
...139, 148, 9 P. 417; Cronin v. Bear Creek Gold Min. Co., 3 Idaho 438, 32 P. 53; Hoskins v. Woodin, 4 Idaho 292, 38 P. 933; Schiller v. Small, 4 Idaho 422, 40 P. 53; v. Sutter, 4 Idaho 748, 44 P. 555; Kelly v. Leachman, 5 Idaho 521, 51 P. 407; Wallace v. McKinlay, 6 Idaho 95, 53 P. 104; Baker......
-
Kelly v. Leachman
...v. Smith, 2 Idaho 359, 16 P. 477; Motherwell v. Taylor, 2 Idaho 148, 9 P. 417, Eddy v. Vanness, 2 Idaho 101, 6 P. 115, and Schiller v. Small, 4 Idaho 422, 40 P. 53, the must be dismissed. This question has been passed upon so frequently by this court that the wonder is that attorneys are no......
-
In re Blackinton's Estate
... ... McKinley, 6 Idaho 95, 53 P. 104; ... Kelley v. Leachman, 5 Idaho 521, 51 P. 407; Weil ... v. Sutter, 4 Idaho 748, 44 P. 555; Schiller v. Small, 4 ... Idaho 422, 40 P. 53.) ... A final ... settlement and distribution cannot be appeal to the district ... court be divided ... ...