I was not present on the oral argument of this case but since the sitting Justices are not able to agree upon the grounds on which the case should be decided, the record and briefs have been referred to me by the Chief Justice with the request that I examine the matter and express my views thereon.
Primarily and fundamentally the appeal taken in Wayne v.Marquardt, 54 Idaho 211, 30 P.2d 369, in which thesupersedeas bond was given, was not taken from any *Page 487 affirmative order or judgment. It was simply taken from a negative order. The appellants had moved the court for a new trial. The court denied the motion; technically and literally speaking there was nothing to stay. The court having merely refused to grant the request of the appellants, a stay of his refusal would accomplish nothing. However, we must view this from a practical standpoint, as the matter occurred in the processes of actual court procedure. After appellants' motion for new trial had been denied and they had taken their appeal, they desired to have the judgment, which they had asked to have vacated, stayed until such time as they could obtain a ruling of the Supreme Court on the question as to whether or not they were in fact entitled to a new trial. Of course it would do them no good to have that order reviewed and have this court say that it was erroneous, if in the meanwhile the trial court permitted the original judgment to be carried out, which was one that might have been enforced through a contempt order.
It must be remembered that the judgment which the appellants were seeking to have vacated was a judgment directing them to deliver over to the respondent papers, books, documents and other personal property. Finding themselves in this legal plight, that the judgment against them might be enforced by contempt proceeding while an appeal was pending from an order denying them a new trial, they obtained an order authorizing them to supersede the judgment by giving a bond in the penal sum of $1,000. They then applied to the appellants herein, Kingsbury and Wallace, to execute a stay bond in compliance with the order, which they did. In that bond they recited as follows:
"Whereas, the above-named defendants Herman Marquardt and Walter H. Hanson have heretofore applied to the above-entitled court for an order fixing a bond to stay all proceedings in connection with the said final judgment in said cause pending a determination of the above-entitled cause by the Supreme Court of the State of Idaho, and whereas, the above-entitled court has heretofore made an order fixing the amount of said bond at the sum of $1000.00;
"Now therefore, we, the undersigned sureties, do hereby obligate ourselves jointly and severally to the above-named *Page 488 plaintiffs under all statutory obligations with reference to stay of proceedings pending determination of said above-entitled cause in the Supreme Court of the State of Idaho, in the sum of $1000.00."
Now this bond having been given for the purpose of superseding the main judgment; the judge and the defendants and the bondsmen so believing and intending, and even so treating it in this action on the bond; and the bond actually having accomplished that purpose, I think it is too late to allow the principals or their sureties to contend otherwise after the judgment has become final and is not complied with.
As stated by Mr. Justice Morgan, it has been held by the California court that the giving of a supersedeas bond on appeal from an order denying a motion for a new trial stays execution of the judgment on which a new trial was asked. The cases cited by him have been followed and approved in the following cases: Starr v. Kreuzberger, 131 Cal. 41,63 P. 134; Credits Commutation Co. v. Superior Court, 140 Cal. 82,73 P. 1009; Weldon v. Rogers, 154 Cal. 632, 98 P. 1070. InCredits Commutation Co. v. Superior Court, supra, the court after citing and discussing previous cases, said:
"A reversal of an order denying a new trial has the same effect as an order granting a new trial, which is to vacate the judgment. A reversal of a judgment upon a direct appeal has precisely the same effect, and no more; it merely vacates the judgment. The relief being, in form and substance, the same in both cases, an appeal from an order denying a new trial should be held to be, in legal effect, an indirect appeal from the judgment; and, thus considered, the rule with respect to a stay of proceedings on such indirect appeal should be the same as upon a direct appeal from the judgment, and all the requirements of the Code in regard to undertakings for stay of proceedings on appeal from different forms of judgments should be held applicable also to appeals from orders denying a new trial after such judgments."
As held by the foregoing authority, the reversal of an order denying a new trial amounts to a reversal of the judgment, so the affirmance of an order denying a new trial *Page 489 amounts to an affirmance of the judgment which it was sought to have vacated. Under the statute and rule in this state (sec. 11-218, I. C. A.),
"The dismissal of an appeal is in effect an affirmance of the judgment or order appealed from, unless the dismissal is expressly made without prejudice to another appeal."
The fact that this court affirmed the judgment of the lower court in Wayne v. Marquardt, in refusing to grant a new trial, and predicated the decision on the ground that notice ofintention to move for a new trial had not been made and servedwithin the time prescribed by the statute, and that such procedure was essential to the granting of the motion, cannot be accepted as the test of liability in an action to recover on the supersedeas bond. The trial court and all parties concerned appear to have acted and proceeded on file theory that the bond stayed the judgment pending the appeal in Wayne v. Marquardt.
We must not lose sight of the distinction between actionwithout jurisdiction and the commission of error. The trial court undoubtedly had jurisdiction to pass upon and dispose of the motion for new trial and in denying the motion he neither acted without jurisdiction nor committed error. Had he granted the motion he would have committed error for the reasons stated in the opinion in Wayne v. Marquardt: namely, that notice and motion had not been made and served within the time prescribed by the statute, but the court would have had jurisdiction to commit the error. (Baldwin v. Anderson, 50 Idaho 606,299 P. 341; American Surety Co. v. Baldwin, 287 U.S. 156,53 Sup. Ct. 98, 77 L. ed. 231, 86 A.L.R. 298; Richardson v. Ruddy,15 Idaho 488, 98 P. 842; Taylor v. Hulett, 15 Idaho 265,97 P. 37, 19 L.R.A., N.S., 535.) If he had jurisdiction to either deny the motion or strike it from the files, he necessarily had the jurisdiction to allow the motion or deny an application to strike it from the files although such an order would have been erroneous. Each such order would have been appealable. (Sec.11-201, I. C. A.)
The fact, that it turns out on appeal that a judgment has been properly entered, cannot be accepted as the test of whether or not a supersedeas bond given on appeal from the *Page 490 judgment is binding on the sureties. For illustration: suppose that in Wayne v. Marquardt the trial court had held that the notice of intention to move for new trial had been timely made and served and had granted a new trial, and no appeal had been taken, all parties had participated, and the case had been again tried and judgment entered, could it be said that the subsequent judgment was without jurisdiction and void? The answer would inevitably be in the negative.
The district court had jurisdiction of the subject matter and of the persons of the different litigants. It also had jurisdiction to try and determine the kind of case and proceeding pending before it. It was the duty of the court to pass upon and dispose of the motion for new trial, and a refusal to do so would have entitled the moving party to a writ of mandate compelling the trial court to rule upon the motion. (Connolly v. Woods, 13 Idaho 591, 598, 92 P. 573; St.Michael's Monastery v. Steele, 30 Idaho 609, 611, 167 P. 349;Boone v. District Court, 38 Idaho 688, 691, 224 P. 429; Hillv. Morgan, 9 Idaho 718, 726, 76 P. 323.)
"Even where discretion is vested, if that discretion under the facts can be legally exercised in but one way, mandate will lie to compel the inferior tribunal so to exercise it." (Newlands v. Superior Court, 171 Cal. 741, 154 P. 829, 831.)
I cannot escape the conclusion that the supersedeas bond served to stay the enforcement of the judgment and that the bond in this case (for the delivery of papers, books, documents, etc.) is a liquidated obligation.
Givens, C.J., concurs. *Page 491