Snyder v. Wooden

AILSHIE, J.

— This case was originally commenced in a justice’s court, and was thereafter appealed to the district court. From an order and judgment of the district court dismissing the appeal so taken this appeal was prosecuted. The appeal from the justice court was dismissed by the district court on the ground that the appellant had failed to give an undertaking as required by law. The judgment of the justice’s court was entered on November 3, 1904. Notice of appeal therefrom was filed and served on November 3, 1904. Thereafter, and on December 2d, an undertaking on appeal was filed, and on December 6th the plaintiff and respondent served and filed his exception to the sufficiency of the sureties. On December 9th the defendants and appellants served and filed notice that on the tenth day of December, at 10 o’clock A. M., “H. M. Hughes and S. T. Davis, in lieu of W. C. Lane, the sureties upon the undertaking of the defendants, ’ ’ would justify before the justice of the peace. On the same date the defendants filed an appeal bond signed by Hughes and Davis, and the plaintiff’s attorney, in company with defendant’s attorney, appeared before the justice of the peace and waived the justification of the sureties and accepted the new. or substitute bond and the sureties thereon. The papers were transmitted to the district court and the attorney for the plaintiff and respondent appeared in that court and waived a jury. Thereafter the attorney for the plaintiff withdrew from the case and the cause was set for trial March 10, 1905, at 10 o ’clock A. M. Before the day set for the trial of the case, the plaintiff appears to have employed the counsel who appears for him in this court, and on the seventh day of March, through such counsel, filed his motion to dismiss the appeal, which was sustained by the court. Respondent takes the position here that, since the old sureties did not justify and other sureties signed and executed a new and separate instrument, which was filed in lieu of, and as a substitute for, the original bond, and which acts were done more than thirty days after the entry of the judgment, the appeal became ineffectual and inoperative, and the court lost jurisdiction to hear such appeal. We are cited to Perkins v. Bridge, 10 Idaho, 189, 77 Pac. 329, as authority for the position taken by the respondent. We do not think that case is applicable to or decisive of the question presented here. There the sureties on the original bond did not attempt to justify, nor did the appellant produce other sureties in their stead for the purpose of justification. On the other hand, his thirty days in which to perfect his appeal had not expired, and within that period of time he filed a new and independent undertaking, and this court held, in substance, that the appeal was taken by the filing and service of a notice of appeal, and that those acts would keep the appeal alive for a period of thirty days from the entry of the judgment, and that a good and sufficient undertaking filed within that time would perfect the appeal and preserve the jurisdiction. By section 4838, Revised Statutes, it is provided that “the appeal is taken by filing a notice of appeal with the justice or judge, and serving a copy on the adverse party.” By section 4842 it is provided that “an appeal from a justice’s or probate court is not effectual for any purpose unless an undertaking be filed with two or more sureties,” etc. While the statute does not in so many words prescribe the time within which the undertaking must be filed, this court and the courts of states having a statute like ours have uniformly held that such undertaking may be filed within thirty days after the entry of the judgment. (Salt Lake Brewing Co. v. Gillman, 2 Idaho, 195, 10 Pac. 32; Coker v. Superior Court, 58 Cal. 177.) This latter section closes with the following sentence: “The adverse party may except to the sufficiency of the sureties within five days after the filing of the undertaking, and unless they or other sureties justify before the justice or judge from whom the appeal is taken, within five days thereafter, upon notice to the adverse party, to the amounts stated in their affidavits, the appeal must be regarded as if no such undertaking had been given.” Under this statute the appellant has the full thirty days in which to file his undertaking, and the respondent has five days after the filing of the undertaking in which to except to the sufficiency of the sureties, and the appellant is thereupon given a further period of five days in which to cause the sureties “or other sureties” to justify. It may, and often will, happen that one or both of the sureties upon appellant’s original bond cannot justify, and the statute has therefore provided that “other sureties” may justify within the five day period. In this case it would appear that appellant was unable to have one of his sureties (Lane) justify, and he therefore substituted in his stead Mr. Davis. The statute does not say whether the “other sureties” shall sign the original undertaking or a new undertaking, but it would seem to be reasonable, and the safer and better practice, to have a new undertaking executed and filed in such case and the sureties justify thereto.

Mr. Spelling, in volume 2 of his New Trial and Appellate Practice, section 571, seems to take this view of the matter and says: “Where new sureties are substituted for the original, there appears no other method by which such substitution and justification can be accomplished than by the execution of a new undertaking.” It is argued, however, by respondent, that, since the new sureties did not in fact justify as required in such cases, the substituted undertaking was invalid and void from the beginning, and never amounted to a compliance with the statute. This contention is completely answered by the waiver of respondent’s counsel as to the justification of sureties and the acceptance of the new bond. Counsel for respondent might waive justification, or, in fact, he might have waived an undertaking altogether (Blair v. Hamilton, 32 Cal. 50; Bank of Escondido v. Superior Court, 106 Cal. 43, 39 Pac. 211; 2 Spelling on New Trial and Appellate Practice, sec. 572); and indeed it is a serious question in our minds if the counsel for respondent did not waive his right to be heard upon his motion to dismiss the appeal by generally appearing in the district court and waiving a jury trial.

The trial court erred in dismissing the appeal. The judgment will be reversed and the cause remanded to the district eourt, with instructions to vacate the order dismissing the appeal and to assume jurisdiction and proceed with the case in harmony with the views herein expressed. Costs awarded to appellants.

Stoekslager, C. J., and Sullivan, J., coneur-