Strickfadden v. Greencreek Highway Dist.
| Citation | 260 P. 431,44 Idaho 751 |
| Decision Date | 11 October 1927 |
| Docket Number | 5006 |
| Parties | CHARLES H. STRICKFADDEN and AUBRA STRICKFADDEN, Respondents, v. GREENCREEK HIGHWAY DISTRICT, Defendant, and FIDELITY & DEPOSIT COMPANY OF MARYLAND, a Corporation, Appellant |
| Court | Idaho Supreme Court |
APPEAL AND ERROR-EXCEPTIONS TO APPEAL BOND-VOID BOND-RULE IN RE FILING MOTIONS- INAPPLICABLE WHEN - PROOF OF AUTHORITY-BURDEN OF SHOWING.
1. C S., sec. 7154, requiring exceptions to appeal bond to be taken within 20 days of filing, applies only to insufficient or defective bonds, and is not applicable to case of void bond, under section 5108.
2. Supreme court rule 48, requiring motions to be filed at least one day before argument, held not applicable on motion to dismiss appeal on ground appeal bond was void, under C. S sec. 5108, in that such rule does not apply to jurisdictional matters.
3. When objection is made on ground that an appeal bond was not filed by resident agent as required, duty devolves on appellant to show proof of authority.
4. Clerk of district court has authority to certify records in his office.
ON PETITION FOR REHEARING.
5. Appellant, on objection to its appeal bond as not signed by a resident agent, as was necessary, does not make the necessary showing of authority, by certificate of the state director of insurance authorizing the agent to solicit and procure insurance and transact business for appellant company soliciting and procuring business, or even transacting business, not being same as binding the company as surety.
APPEAL from the District Court of the Tenth Judicial District, for Idaho County. Hon. Miles S. Johnson, Judge.
Motion to dismiss appeal. Dismissed.
Appeal dismissed, and costs awarded to respondent.
J. F. Ailshie and A. S. Hardy, for Respondents.
C. S., secs. 7153 and 7154, provide for the giving of an undertaking upon appeal. The appeal is not taken unless an undertaking is filed as required by these sections, and the same must be filed within five days after taking the appeal or the appeal is ineffectual. (Hattabaugh v. Vollmer, 5 Idaho 23, 46 P. 831; Woodmansee & Webster Co. v. Woodmansee, 31 Idaho 747, 176 P. 148; Kingsbury v. Lee, 36 Idaho 447, 211 P. 552; Myers v. Harvey, 39 Idaho 724, 229 P. 1112.)
C. S., secs. 4926, 5008, 5009, 5103, provide for regulation and licensing of companies and their agents authorized to write such insurance and bonds as were issued in this case.
It is only such companies as have complied with the law, and only such agents as are licensed to write insurance, that can execute valid bonds. The execution of the bonds by a nonresident agent in connection with an agent not authorized to execute the bond in the manner and form provided, is not an execution of the bond at all. (Gonzaga University v. Masini, ante, p. 113, 255 P. 413.
Respondents upon an appeal are entitled to have such a bond executed as is required by law and in the manner required by law, and if not so executed the bond is ineffectual and so far as it affects the perfection of an appeal is void.
F. E. Fogg and Williams & Cornelius, for Appellant.
By rule 48 of this court it is provided that objections to a bond or undertaking on appeal, or to the notice of appeal, "must be taken at the first term after the transcript is filed, and must be noted in writing and filed at least one day before the argument, or they will not be regarded."
Exceptions to an undertaking on appeal, under sec. 7154, may be taken where such undertaking is "insufficient or defective" in any respect, but the exceptions must be filed and served within twenty days, otherwise they are waived. (Meservey v. Idaho Irr. Co., 35 Idaho 257, 205 P. 559; Cupples v. Stanfield, 35 Idaho 466, 207 P. 326.)
Under C. S., sec. 5009, it is not required that the "resident agent," who signs the bond shall be an attorney in fact of the surety, nor that there shall be a power of attorney on file. However, under the supplemental record both Eimers and Graham were attorneys in fact. By sec. 5008, the only requirement is that the surety company shall be authorized to transact business in the state; and the insurance "must be written through licensed agents residing within the state." (C. S., secs. 5105, 5107, 5109, 5113.)
A surety company's right to do business is a franchise. (26 C. J., sec. 11, p. 1015.) Only a state can forfeit this franchise for failure to pay a judgment. (26 C. J., sec. 120, p. 1045.)
The clerk only has authority to certify records in his office. His certificate as to the matters dealt with is of no more importance than of any other individual. (11 C. J., sec. 72, p. 887.)
The contention that the bonds, even had they never been signed by Eimers and Graham, were void is clearly untenable. The necessity for them to sign was simply a requirement of the Idaho statute regulating foreign surety corporations. It has nothing to do with the validity of the obligation, but only with a compliance of the statute. As between respondents and the surety, it is a binding obligation. (32 C. J., sec. 31, p. 998, sec. 37, p. 1000, sec. 199, p. 1108; Vermont Loan & Trust Co. v. Hoffman, 5 Idaho 376, 95 Am. St. 186, 49 P. 314, 37 L. R. A. 509; Caledion Fire Ins. Co. v. Shepherd, 111 Miss. 175, 71 So. 314; Phoenix Ins. Co. v. Seegers, 192 Ala. 103, 68 So. 902.)
F. E. Fogg and H. Taylor, for Defendant Highway District.
Respondent moved to dismiss the appeal on the ground that the appeal bond was not signed by a resident agent and that the surety company, under C. S., sec. 5108, was disqualified as such because it had failed to pay a judgment.
Appellant contends that the exceptions, not having been taken within twenty days of the filing of the first bonds, came too late. (C. S., sec. 7544.) Such section applies only to insufficient or defective bonds, a distinction having been made by this court between such and void bonds. (Spokane C. L. Co. v. Crane Creek S. Co., 36 Idaho 786, 213 P. 699; Farnworth v. Viet, 39 Idaho 40, 225 P. 1023.)
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