Zienke v. Northern Pac. Ry. Co.

• Decision Date: 11 June 1901
• Parties: ZIENKE v. NORTHERN PACIFIC RAILWAY COMPANY
• Court: Idaho Supreme Court

65 P. 431

7 Idaho 746

ZIENKE v. NORTHERN PACIFIC RAILWAY COMPANY

Supreme Court of Idaho

June 11, 1901

APPEAL-UNDERTAKING-DELIVERY OF UNDERTAKING.-An undertaking upon appeal from an order denying a new trial executed and verified by the sureties on the same day after the order was made, but before the same was filed by the clerk, is sufficient, where it is shown that the undertaking upon appeal was filed simultaneously with the notice of appeal, but after the order appealed from had been filed by the clerk.

MOTION TO DISMISS APPEAL-TRANSCRIPT ON APPEAL-DIMINUTION OF RECORD.-A motion to dismiss an appeal from a judgment, upon the ground that certain papers, which were a part of the record upon such appeal, is not included in the transcript is properly denied, the same being no ground for dismissal the remedy being by suggestion of diminution of the record.

(Syllabus by the court.)

APPEAL from District Court, Kootenai County.

Motion to dismiss appeal denied.

H. M Stephens and John M. Bunn, for Appellant.

Respondent contends that the undertaking was invalid because executed before the appeal was taken. But this contention cannot be sustained either on principle or on authority. The bond was entered into by the parties knowing the facts, i. e., that the appeal had not yet been taken, and there being no fraud in the matter the sureties would be estopped to deny the truth of the allegations in the bond. (1 Ency. of Pl. & Pr 1019, and cases cited in notes 1 and 2.) The statute requires the filing of the bond after service of the notice of appeal but makes no requirement as to the time of execution. The bond is good, it is a contract and governed by the law of contracts. Like other contracts, an essential element and the last step in its formation is delivery. It is not a valid bond until delivery, and delivery is necessary in order to perfect it. It was not delivered until it was filed with the clerk in accordance with the statutory provisions, that is, on February 8th, that was the date of the bond. It would be just as valid on objections for respondent to say that the blank bond used was prepared a year earlier; for without delivery the signed bond had no more validity than the blank form. It can scarcely be necessary to cite authorities on this point, for it is almost one of the axioms of law, but we note among a multitude of cases State v. Alta Silver Min. Co., 24 Nev. 230, 51 P. 982; James v. Wood, 65 Miss. 531, 5 So. 106; Chateaugay Ore Co. v. Blake, 35 F. 804; Dore v. Corey, 13 Cal. 502; 1 Ency. of Pl. & Pr. 977; James v. Woods, 65 Miss. 528, 5 So. 106; Covery v. Shirk, 58 Ind. 264; Byers v. Cook, 13 Ore. 397, 10 P. 417; Weiss v. Jackson, 8 Ore. 529; Poppleton v. Nelson, 10 Ore. 437; Dahl v. Tibbals, 5 Wash. 259, 31 P. 868.) As to the contention that appellant did not have the motion for a new trial heard as soon as possible we refer to section 4442, which reads as follows: "The application for a new trial shall be heard at the earliest practicable period after the affidavits, bills of exceptions, or statement, as the case may be are filed, and may be brought to a hearing upon motion of either party. The bill of exceptions which section 4441 provides shall be "delivered to the clerk of the court for the judge" was so delivered on June 19, 1900, and certainly appellant cannot be held responsible for the fact that the clerk did not deliver it to the judge or the judge certify and settle it until six months later. Appellant had done his duty and waited now for the clerk. Respondent had as much power to press matters as had appellant. The statute expressly gives it to him. Section 4430 provides that the clerk shall forward the papers to the judge upon notice in writing of either party. If the delay injured respondent, the power of correction was in his own hands at all times. (Miller v. Hunt, ante, p. 486, 63 P. 803.) On the motion to dismiss the appeal from the judgment. The sureties on the undertaking justified and were held sufficient by the probate court in accordance with the provisions of section 4816 of the code. If it be true, as respondent states, that "section 4816 applies only to an undertaking given to stay execution" and not to this case, we would ask under what section of the statutes he gets his authority to except to the sufficiency of the sureties. His is certainly an argument ad absurdum when he attempts to destroy the section of the statutes on which his own objection is based.

Charles L. Heitman, for Respondent.

The record and the affidavit of the deputy clerk show that the order denying a new trial on the seventh day of March, 1901, contained the following indorsement and none other, to wit: "Filed January 26, 1901. A. E. Mayhew, Judge"; and that on March 7, 1901, the deputy clerk indorsed on the order, "Filed February 8, 1901." It will not be contended that the filing by the judge was such a filing as contemplated by the statute, as the judge has no authority to file papers of this character, that duty devolving upon the clerk alone. (3 Ency. of Pl. & Pr. 479, and cases cited.) Respondent contends that the undertaking on appeal from said order denying a new trial is wholly without consideration, and therefore insufficient to bind the sureties or to support the appeal against the objection of respondent. At the time the undertaking was executed and acknowledged no appeal had been taken, and furthermore no right to take an appeal from said order existed because the order had not been entered or filed. The notice of appeal could not have been filed and served on February 5, 1901, and if the appeal had been perfected at that time it would have been prematurely taken. It is well settled by this court, and by the California and other courts, that no appeal from a judgment can be taken before its entry. (Vollmer v. Nez Perces County, ante, p. 302, 62 P. 925; Brady v. Burke, 90 Cal. 1-5, 27 P. 52; Condee v. Barton, 62 Cal. 5; Clarke v. Mohr, 125 Cal. 540, 58 P. 176.) As the undertaking on the appeal from the order herein was without any consideration to support it, and was therefore incapable of sustaining the appeal, there was more than an "insufficiency" in the undertaking, and it must be regarded with the same effect as if no undertaking had been filed. It created no obligation upon the sureties and gave to the respondent no right to recover from them, the cost and damages to which he might be entitled if the judgment should be affirmed or the appeal be dismissed. Such want of validity in the instrument is equivalent to the entire want of an undertaking, and the appellant is not entitled by virtue of section 4822 of the Revised Statutes of Idaho to supply its absence by filing a new undertaking. (Stackpole v. Hermann, 126 Cal. 466, 58 P. 935; Home Associates v. Wilkins, 71 Cal. 626, 12 P. 799; Estate of Heydenfeldt, 119 Cal. 346, 51 P. 543.) Respondent contends that the undertaking could not be enforced for want of jurisdiction. The appeal having been prematurely taken the court has no jurisdiction to entertain it and the sureties are not bound. (Elliott on Appellate Procedure, sec. 357; Caffrey v. Dudgeon, 38 Ind. 512, 10 Am. Rep. 126; Benedict v. Bray, 2 Cal. 255, 56 Am. Dec. 332; Moore v. Damon, 4 Mo.App. 111.) No bill of exceptions or statement of the case, to be used on the motion for a new trial, can be legally filed until after the settlement of the bill or the statement. It does not become a part of the record until filed. (Idaho Rev. Stats., secs. 4430, 4441.) Section 4442 of the Revised Statutes of Idaho requires the application for a new trial to be heard at the earliest practicable period. In the case of Boggs v. Clarke, 37 Cal. 236, the statement on motion for a new trial was filed August 6, 1867. On October 2, 1867, notice of motion for settlement of the statement and for a new trial was given, said motion to be heard October 7, 1867. The court held that the motion for a new trial had not been presented or brought on for hearing with due diligence or within a reasonable time. (Walsh v. Hutchings, 60 Cal. 228; Griess v. Insurance Co., 93 Cal. 411, 28 P. 1041; Hayne on New Trial and Appeal, 773; In re Clary, 112 Cal. 295, 44 P. 569.) The final judgment in this cause was rendered and entered January 26, 1900.

The term of court during which said cause was tried adjourned a few days thereafter. Parties are not presumed to be...