From both an adverse judgment and a consequent order vacating an injunction, plaintiff, Winston M. Caldwell, appealed. His undertaking was conditioned "that the said appellant will pay all damages and costs which may be awarded against him on the appeal or a dismissal thereof, etc."
Respondent, Village of Mountain Home, has moved to dismiss the appeal upon the respective grounds that a transcript has not been filed within the time prescribed by law and rules 23 and 25 of this court, and that the undertaking is void for uncertainty. The time for filing the transcript expired Feb. 10, 1930. On Feb. 8th, counsel filed the transcript with the clerk, but, inasmuch as it lacked the index required by rule 14, it was by the clerk returned to him in accordance with rule 20 for "proper preparation." A de facto transcript had been filed in time, defective only in a feature not affecting its substance. The return by the clerk was not a rejectionin toto, but counsel took the transcript as the clerk's bailee, the *Page 35 officer expecting its prompt return after the indicated correction. Under the circumstances, we see no substantial violation of either the law or rules 23 and 25.
The attack upon the undertaking would have been conclusive had it been timed prior to the legislature of 1907, which amended sec. 4807, Rev. Stats., so as to provide for objections to defects and insufficiencies within twenty days. (Martinv. Wilson, 24 Idaho 363, 134 P. 532; Clear Lake Power Improvement Co. v. Chriswell, 31 Idaho 339, 173 P. 326;Cupples v. Stanfield, 35 Idaho 466, 207 P. 326.)
Motion to dismiss denied. Costs to appellant.
Givens, C.J., and Budge, Varian and McNaughton, JJ., concur.
(March 15, 1930.) ON PETITION FOR REHEARING.