Young v. Waldrop

• Decision Date: 20 January 1941
• Docket Number: 8149.
• Citation: 109 P.2d 59,111 Mont. 359
• Parties: YOUNG et al. v. WALDROP.
• Court: Montana Supreme Court

109 P.2d 59

111 Mont. 359

YOUNG et al. v. WALDROP.

No. 8149.

Supreme Court of Montana

January 20, 1941

Appeal from Tenth District Court, Fergus County; C. F. Holt, Judge.

Suit in equity by Charles T. Young and another against George R Waldrop, to vacate a summary judgment entered against plaintiffs as sureties on an appeal undertaking and stay bond filed in an action in which defendant was the plaintiff and respondent. From a judgment for defendant, plaintiffs appeal.

Affirmed.

R. E Dockery and H. Leonard DeKalb, both of Lewistown, for appellants.

Ed Booth, Jr., of Glasgow, for respondent.

JOHNSON Chief Justice.

Plaintiffs Young and Olson were the sureties on the appeal undertaking and stay bond of the appellants Maser in the case of Waldrop v. Maser, 93 Mont. 612, 23 P.2d 417. That appeal was dismissed by this court for appellants' failure to file the transcript within the time provided by statute and court rule, and the trial court on the motion of Waldrop, the plaintiff and respondent in that case, thereupon entered summary judgment in his favor against the sureties as provided by section 9735, Revised Codes, and the undertaking.

The sureties thereupon attempted to appeal from the summary judgment, but the appeal was dismissed by this court for the reason that no appeal lies from a consent judgment and that if the judgment was erroneously entered or was based upon insufficient or invalid grounds, the proper remedy was by appropriate proceedings in the district court. Waldrop v. Maser, 96 Mont. 242, 30 P.2d 83.

The sureties then moved the district court in the original action for an order setting aside the summary judgment against them. The motion was denied, but instead of appealing to this court the sureties filed an equity suit in the trial court to have the judgment against them vacated, and have now appealed from adverse judgment in the latter suit.

The undertaking and stay bond in the original action was filed on March 9, 1932, nine days after the judgment, but the notice of appeal was not served and filed until August 29, 1932, exactly six months after the judgment. Section 9733, Revised Codes, provides that "the appeal is ineffectual for any purpose unless, within five days after service of the notice of appeal, an undertaking be filed," etc. Appellants contend that the requirement that the undertaking be filed "within five days after service" means that it cannot be done before the service; that it means "not before service nor later than five days after service," and that it fixes not only the last day for performance but also the first day.

The service and filing of the notice of appeal and not the undertaking initiates the appeal, and there is no appeal until the notice is served and filed, but in this case the undertaking, while filed before the notice, was still on file when the notice of appeal was finally served and filed. The respondent in the original case did not question the validity of the undertaking or of the appeal, and the appellants in that action obtained all the benefits of stay and appeal for which the undertaking was executed by the sureties. But appellants contend that under the statute it could only be filed after the notice, and that because it was filed earlier and was not withdrawn and re-filed afterward it is void and no valid judgment can be predicated on it, in spite of the fact that it accomplished all the desired results.

The matter being jurisdictional, it is possible that such an inequitable result might have to be recognized if the phrase necessarily, or even ordinarily, had the meaning contended for by appellants here. However, the great weight of authority is contrary to their contentions.

As used in many connections, the word "within" refers to all boundaries, but with reference to time it is defined by Webster's International Dictionary, 2d Ed., as "not longer in time than; before the end or since the beginning of; as within a hour." We have placed the word "or" in italics to stress the fact that this part of the definition is in the disjunctive and not the conjunctive--that "within," as applied to time, is defined as referring to only one limit. The remainder of the definition indicates, and reason shows, that "within" refers to the second of the disjunctive contingencies, only when used in some such expression as "within five days before," rather than "within five days after," since the latter expression is included in the first of the disjunctive contingencies.

A reference to 45 Words and Phrases, Perm.Ed., 383, 384, discloses that as used in this connection "within" means "not beyond" or "not later than;" that it includes only the final limit and not the starting point. Thus it is held that when time is spoken of, any act is "within" the time named that does not extend beyond it. Battersby v. Shepeard, 89 Cal.App. 756, 265 P. 506; French v. Powell, 135 Cal. 636, 68 P. 92; Live Oak Lumber Co. v. Farr, 28 Cal.App. 641, 153 P. 741; Dibble v. David Hodes Co., 132 Or. 596, 277 P. 820, 286 P. 554; Sanborn v. Fireman's Ins. Co., 16 Gray 448, 82 Mass. 448, 77 Am.Dec. 419; Levert v. Read, 54 Ala. 529; Guerney v. Moore, 131 Mo. 650, 32 S.W. 1132; Storing v. Stutsman, 56 N.D. 531, 218 N.W. 223.

In the California cases of French v. Powell and Live Oak Lumber Co v. Farr, supra, the contention was made that a claim filed prior to the completion of the work was...