W. G. Jenkins & Co. v. McKenzie

• Decision Date: 29 May 1924
• Citation: 39 Idaho 291,226 P. 1069
• Parties: W. G. JENKINS AND COMPANY, Bankers, a Corporation, Appellant, v. K. MCKENZIE, Respondent
• Court: Idaho Supreme Court

226 P. 1069

39 Idaho 291

W. G. JENKINS AND COMPANY, Bankers, a Corporation, Appellant, v. K. MCKENZIE, Respondent

Supreme Court of Idaho

May 29, 1924

PLEADING AND PRACTICE-ORDER DISSOLVING ATTACHMENT-APPEALABLE WITHOUT SUPERSEDEAS-PURPOSE OF SUPERSEDEAS TO CONTINUE IN FORCE ATTACHMENT.

1. Under C. S., sec. 7152, an appeal may be taken to the supreme court from the district court, from an order dissolving or refusing to dissolve an attachment, within sixty days from the entry of the order, and the right of appeal from such order is not dependent upon the giving of a supersedeas.

2. Under C. S., sec. 7159, an appeal from an order dissolving an attachment does not continue in force the attachment, unless an undertaking be executed and filed on the part of appellant within twenty days after the entry of the order appealed from, conditioned as required by this section of the statute.

3. An attachment is an ancillary proceeding that must have as a foundation the pendency of a principal action, but so long as such action is pending, the right to the writ if it exists, is a remedial right that continues until the entry of judgment in the principal action.

APPEAL from the District Court of the Sixth Judicial District, for Custer County. Hon. Ralph W. Adair, Judge.

Motion to dismiss appeal. Denied.

Motion to dismiss the appeal denied. Costs awarded to appellant.

Peterson & Coffin, for Appellant, cite no authorities.

Whitcomb Cowen & Clark, for Respondent.

Appeal ultra jurisdiction this court. (Hattabaugh v Volmer, 5 Idaho 23, 46 P. 831; Woodmansee & Webster Co. v. Woodmansee, 31 Idaho 747, 176 P. 148; Kimzey v. Highland Livestock & Land Co., 37 Idaho 9, 214 P 750; C. S., sec. 7159.)

Nothing before this court calling for an opinion. (Utah Implement Vehicle Co. v. Kenyon, 30 Idaho 407, 164 P. 1176.)

Mooted question. (Graves v. Berry, 35 Idaho 498, 207 P. 718; Abels v. Turner Trust Co., 31 Idaho 777, 177 P. 884.)

WILLIAM A. LEE, J. McCarthy, C. J., and Budge and Wm. E. Lee, JJ., concur.

OPINION

WILLIAM A. LEE, J.

--In this action appellant obtained a writ of attachment against respondent's property, which was, upon motion, dissolved June 22, 1923. On July 10, 1923, appellant appealed from the order dissolving the attachment but failed to file an undertaking until July 14, 1923. The undertaking is an appeal bond in the sum of $ 300 and also a supersedeas in the sum of $ 13,000, but was not filed or served within 20 days after the entry of the order dissolving the attachment. C. S., sec. 7159, provides: "An appeal does not continue in force an attachment unless an undertaking be executed and filed on the part of the appellant, by at least two sureties, in double the amount of the debt claimed by him; that the appellant will pay all costs and damages which the respondent may sustain by reason of the attachment, in case the order of the court below be sustained; and unless within 20 days after the entry of the order appealed from such appeal be perfected."

Respondent moves to dismiss the appeal, upon the ground that the supersedeas not having been filed within the 20 days from the entry of the order dissolving the attachment, the appeal from such order presents only a moot question, as a reversal of the order dissolving the attachment could not revive the same.

C. S., sec. 7152, fixes the time for taking an appeal to the supreme court, and subdivision 2 of this section reads: " . . . . from an order dissolving or refusing to dissolve an attachment . . . . within 60 days after the order or interlocutory judgment is made and entered on the minutes of the court, or filed with the clerk."

We are of the opinion that this provision of C. S., sec. 7152 intends to give an absolute right of appeal to this court from an order of the district court...