Threlkeld v. O'Neal

• Decision Date: 23 December 1901
• Parties: THRELKELD v. O'NEAL.
• Court: Montana Supreme Court

66 P. 940

26 Mont. 209

THRELKELD v. O'NEAL.

Supreme Court of Montana

December 23, 1901

Appeal from district court, Deer Lodge county; Welling Napton Judge.

Action by Anna M. Threlkeld against George B. O'Neal. Judgment was rendered in favor of plaintiff, and defendant appealed therefrom and from an order denying a new trial. Motion to dismiss appeal from the judgment denied, and motion to dismiss the appeal from the order refusing a new trial granted.

J. H Duffy, for respondent.

PIGOTT J.

Motion to dismiss appeals. Judgment in favor of the plaintiff (respondent) and against the defendant (appellant) was entered in the district court on May 23, 1901. An order denying the defendant's motion for a new trial was entered on August 31, 1901. On October 31, 1901, a notice of appeal from the judgment and from the order was served upon the attorney for the plaintiff. It was filed with the clerk of the court below on November 2, 1901. On the day last mentioned an undertaking to effectuate the appeals was filed. The plaintiff excepted to the sufficiency of the sureties but neither they nor other sureties justified, and more than 20 days elapsed after the defendant was served with notice of plaintiff's exception to the sufficiency of the sureties and before the present motion was made. The respondent moves the dismissal of each appeal.

Written opinions are but rarely delivered in this court upon motions to dismiss, but the misapprehension by some members of the bar of the effect of the failure of sureties in an undertaking on appeal to this court to justify induces us to depart from our custom.

1. Among the papers submitted for our consideration is an affidavit made by the attorney for the respondent, and which he has caused to be filed with the clerk of this court. It does not appear that the affidavit was served, either personally or constructively, upon the appellant or his attorney. Under these circumstances the affidavit will not be considered, but must be stricken from the files. It is so ordered.

2. The appeal from the judgment is not ineffectual because the sureties failed to justify as required by section 1732 of the Code of Civil Procedure. Such failure destroys the effect of the undertaking in so far only as the undertaking may operate as a supersedeas. This is the manifest meaning of the section. King v. Mining Co., 24 Mont. 470, 62 P 783. Nothing in State v Napton, 24 Mont. 450 62 P 686, where the interpretation of sections 1760 and 1763 of the Code of Civil Procedure was involved, is to the contrary. In that case the plaintiff excepted to the sufficiency of the sureties who had signed the undertaking given to effectuate an appeal from a justice's court to a district court, and neither they nor other sureties justified. The plaintiff seasonably moved a dismissal in the district court, and we held the appeal ineffectual because of...