Woodman v. Calkins

• Citation: 31 P. 63,12 Mont. 453
• Parties: WOODMAN v. CALKINS et al.
• Decision Date: 15 September 1892
• Court: United States State Supreme Court of Montana

31 P. 63

12 Mont. 453

WOODMAN v. CALKINS et al.

Supreme Court of Montana

September 15, 1892

Appeal from district court, Lewis and Clarke county; WILLIAM H HUNT, Judge.

Action by E. E. Woodman against R. M. Calkins and others. Judgment for plaintiff. Defendants appeal. Plaintiff moved to dismiss the appeal. Motion overruled.

DAVID B. Carpenter, for appellants.

R. R Purcell, for respondent.

BLAKE C.J.

The judgment in this action was entered May 16, 1892, and the notice of appeal and undertaking on appeal were filed June 6 1892. The transcript was filed June 25, 1892, in this court and the respondent moves to dismiss the appeal upon the ground that the undertaking does not conform to the provisions of the Code of Civil Procedure: "The undertaking on appeal *** must be executed *** to the effect that the appellant will pay all damages and costs which may be awarded against him on the appeal, or on a dismissal thereof, not exceeding three hundred dollars. ***" Section 423. The language of the condition of the undertaking is as follows: "Now, therefore, in consideration of the premises and of such appeal, we, the undersigned, residents of the county of Lewis and Clarke, state of Montana, do hereby jointly and severally undertake, on the part of the appellant, that the said appellant will pay all damages and costs which may be awarded against defendants on appeal, not exceeding three hundred dollars." The following condition, required by the statute, has been omitted "Or on a dismissal thereof." The appellants, before the hearing of this motion, filed with their affidavit a sufficient undertaking on appeal, which is executed by the sureties who are named in the original instrument. The respondent objects to the consideration of the second undertaking, and contends that the failure to insert the foregoing clause vitiates the entire document. We think this is a strained interpretation of the words, and that the sureties have rendered themselves liable in a certain contingency to pay all damages and costs which may be awarded against the appellants. The first undertaking is defective, and not void. It has been the practice of the supreme court of the territory to allow a new undertaking of this nature to be made when the appellant has shown his good faith by complying substantially with the Code of Civil Procedure, and filing, within the proper time, an undertaking on appeal. Stapleton v. Pease, 2...