Wilson v. Doyle

• Decision Date: 18 April 1906
• Citation: 12 Idaho 295,85 P. 928
• Parties: T. H. WILSON, Respondent, v. WILLIAM DOYLE, Appellant
• Court: Idaho Supreme Court

85 P. 928

12 Idaho 295

T. H. WILSON, Respondent, v. WILLIAM DOYLE, Appellant

Supreme Court of Idaho

April 18, 1906

APPEAL from the District Court of the First Judicial District for the County of Kootenai. Hon. Ralph T. Morgan, Judge.

Respondent obtained a judgment in a justice's court and the defendant appealed to the district court. The appeal was dismissed by the district court and judgment of dismissal thereupon entered, from which judgment the defendant appealed to the supreme court. Judgment affirmed.

Judgment affirmed. Costs awarded to respondent.

Charles L. Heitman, for Appellant, cites no authorities on points decided by the court.

Thomas H. Wilson, pro se.

The correlative "or" in the statute, section 4844 which section is identical with the California code, section 978, has received the judicial construction of "and." (McConkey v. Superior Court, 56 Cal. 83; Numbers v. Rocky Mountain Bell Tel. Co., 7 Idaho 408 (last paragraph at p. 413), 63 P. 381).

The undertaking recites whereas "defendant is desirous of appealing," and "a stay of proceedings is claimed." It would seem to be void for uncertainty especially as to the appeal. (Kelly v. Leechman, 5 Idaho 521, 51 P. 407, and cases there cited; Carter v. Butte Creek Gold Mine & P. Co., 131 Cal. 350, 63 P. 667.)

The appeal bond must conform to the terms of the statute. (Johnson v. Letson, 3 Ariz. 344, 29 P. 893.)

A stay bond does not do this. (Duff v. Greenbaum, 72 Cal 157, 12 P. 74, 13 P. 323, approved by same court in Duncan v. Times-Mirror Co., 109 Cal. 602, 42 P. 147.)

The obligors are held according to the terms of their bond only. (People v. Breyfogle, 17 Cal. 504, 508.) Hence would not be held for costs on appeal in this case.

AILSHIE, J. Stockslager, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

This case was instituted in the justice's court of Harrison precinct, Kootenai county. Judgment was entered for the plaintiff, and the defendant appealed to the district court. On motion of the plaintiff the appeal was dismissed by the district court and judgment of dismissal was thereupon entered, from which the defendant has appealed to this court. It is contended by respondent here that the appeal was properly dismissed for the reason that the defendant and appellant failed to give an undertaking on appeal as provided by section 4842, Revised Statutes, and if that contention is correct, the judgment of the lower court in dismissing the appeal should be affirmed. The judgment entered in the justice's court was for $ 80.60, principal, and $ 3.80 costs. The undertaking on appeal was given for the sum of $ 200. The conditions of the undertaking which are material to the consideration of the bond under discussion are as follows: "And, whereas, the above defendant is desirous of appealing from the decision of said justice to the district court at Rathdrum, in and for the county of Kootenai, state of Idaho and a stay of proceedings is claimed:

"Now, if the above defendant, William Doyle, shall well and truly pay, or cause to be paid, the amount of said judgment and all costs, and obey any order the said district court may make therein, if the said appeal be withdrawn or dismissed, or pay the amount of any judgment, and all costs that may be recovered against the said district court, then this obligation to be null and void; otherwise to remain in full force and virtue."

The appellant contends that while the undertaking was not sufficient to stay proceedings in the justice's court, that it did constitute a sufficient undertaking on appeal. Respondent, on the other hand, contends that under section 4842 the undertaking is, if anything, merely a stay bond and is in no respect an appeal bond.

The supreme court of California in McConky v. Superior Court, 56 Cal. 83, in construing section 978 of the Code of Civil Procedure of that state, which is the same as section 4842 of our statute, held that "the word 'or' in section 978 of the Code of Civil Procedure joining the clauses referring respectively to the undertaking for costs on appeal and an undertaking for a stay of proceedings, is...