This is an appeal from an order setting aside as void a judgment against a bondsman. The Judgment against the respondent company was entered pursuant to C. S., sec. 7155, on an undertaking on appeal.
Appellants Baldwin, as plaintiffs, had procured a judgment against Ed. Anderson and the Singer Sewing Machine Company as defendants in the district court. The defendants jointly gave notice of appeal and appealed the case to the supreme court. On appeal the following undertaking was executed and filed:
"Whereas the defendant, Singer Sewing Machine Company, a corporation in the above entitled action has appealed to the Supreme Court of the State of Idaho from the judgment made and entered against it in the above entitled action and in the above entitled court in favor of the plaintiffs in said action on the 31st day of May, 1928, for the sum of Nineteen Thousand Five Hundred ($19,-500.00) Dollars and for Seventy-three and 70-100 ($73.70) Dollars costs in said suit, making a total of Nineteen Thousand Five Hundred Seventy-three and 70-100 ($19,-573.70) Dollars, and from the whole of said judgment:
"And whereas, the said appellant, Singer Sewing Machine Company, a corporation, is desirous of staying the execution of said judgment so appealed from; *Page 612
"Now therefore, the undersigned American Surety Company, a corporation authorized to, and doing business in the State of Idaho, in consideration of the premises and of such appeal on the part of said appellant, Singer Sewing Machine Company, a corporation, does hereby acknowledge itself firmly bound in the sum of Twenty-five Thousand ($25,000.00) Dollars, gold coin of the United States, that if the said judgment appealed from, or any part thereof, be affirmed, or the appeal dismissed, the appellant will pay in gold coin of the United States of America, the amount directed to be paid as to which said judgment shall be affirmed, if affirmed only in part, and all damages and costs which may be awarded against the appellant upon the appeal, and that if the said appellant does not make such payment within thirty days from the filing of theremittitur from the Supreme Court in the court from which the appeal is taken, judgment may be entered on motion of the respondents in their favor and against the undersigned surety for the said sum of Nineteen Thousand Five Hundred Seventy-three and 70-100 ($19,573.70) Dollars, together with the interest that may be due thereon and the damages and costs which may be awarded against the said appellant, Singer Sewing Machine Company, upon the appeal.
"In witness whereof, the said American Surety Company, has caused its name and seal to be attached hereto by its proper officers and agents at Boise, Idaho, this 28th day of August, 1928.
"AMERICAN SURETY COMPANY OF NEW YORK.
"By HOWARD E. STEIN, "Attorney-in-Fact."
In the supreme court the judgment was affirmed as to Anderson but reversed as to Singer Sewing Machine Company. (49 Idaho 231,287 P. 944.) The remittitur was filed in the district court on May 22, 1930. Pursuant to the remittitur on May 24th the district court entered judgment dismissing the case as to Singer Sewing Machine Company. On June 23d the appellants Baldwin moved for *Page 613 judgment against the American Surety Company on the undertaking, which they claimed stayed execution on the whole judgment. This motion was granted and judgment accordingly was entered. Thereafter the American Surety Company moved to vacate and set aside said judgment on the grounds that it was, (1) void; (2) contrary to good conscience, and (3) was entered without notice to the American Surety Company. The motion was granted and an order entered whereby said judgment was declared null and void, and was annulled, vacated, and set aside. From this order the present appeal was taken.
Many assignments of error are made, but so far as this appeal is concerned we deem it necessary to consider only those which challenge the ruling of the lower court to the effect that the judgment against the Surety Company on the undertaking was void.
The briefs on both sides very ably and in great detail discuss the legal effect of the different provisions of the bond in light of the nature of the appeal. The appellants claim that the undertaking by its terms superseded and stayed execution upon the whole judgment and is conditioned to pay any part thereof affirmed by the supreme court, and that such being the conditions of the bond its recital of introductory facts is misleading and not controlling. On the other hand the respondents devote the major portion of their brief to the contention that the recital of facts in the introductory part of the undertaking governs the condition and obligation of the undertaking; that such recitals limit the stay of execution to the Singer Sewing Machine Company only, and the obligation is to pay only such judgment in whole or in part as might be affirmed against the Singer Sewing Machine Company.
We disclaim any intention or right to construe the legal effect of the undertaking in question further than to examine it in aid of determining the sole question of the court's jurisdiction to hear and determine the motion for judgment thereon. *Page 614
The Surety Company did not claim error, and appeal. It did not claim inadvertence or mistake. It challenged the court's jurisdiction and moved to set aside the judgment as void. The whole question here is a question of jurisdiction, nothing further, nothing else.
If a court has jurisdiction of the parties, jurisdiction of the subject matter and jurisdiction of an issue of law or fact presented, then its judgment upon that issue is not void whether erroneous or not. Such judgments in the absence of mistake or, in a proper case, motion for new trial, may be corrected only by appeal. (Bunnell Eno etc. Co. v. Curtis,5 Idaho 652, 51 P. 767; Taylor v. Hulett, 15 Idaho 265,97 P. 37, 19 L.R.A., N.S., 535; Wyllie v. Kent, 28 Idaho 16,152 P. 194; United States Nat. Bank v. Eldredge, 49 Idaho 363,288 P. 416.)
Regarding notice: Where a supersedeas undertaking for stay of execution is filed pursuant to C. S., sec. 7155, it is held the surety becomes a party to the action and if the judgment stayed by the undertaking is affirmed in whole or in part and remains unsatisfied for thirty days the judgment creditor may move in the action for judgment on the undertaking against the surety, and it is unnecessary to give the Surety Company notice of such motion. (Empire State-Idaho Min. Developing Co. v. Hanley, 136 Fed. 99, 69 C.C.A. 87; United States Fidelity GuarantyCo. v. Ft. Misery Highway Dist., 22 Fed. (2d) 369; Gray v.Cotton, 174 Cal. 256, 162 P. 1019; Portland Trust Co. v.Havely, 36 Or. 234, 59 P. 466, 61 P. 346.)
It is claimed by respondent that these authorities are not in point because the legal effect of an undertaking is the same as that of a bond, in that the party executing the undertaking is simply surety for a principal; that in this case the introductory recitals of the undertaking disclose that the principal is the Singer Sewing Mechine Company, and that upon the action being dismissed as to it such dismissal was also a dismissal as to the Surety Company. We cannot accept this view. The undertaking is a complete *Page 615 independent contract. The obligation of its maker is not collateral or secondary. (Moffat v. Greenwalt, 90 Cal. 368,27 P. 296.) Its obligations are to be determined from the instrument itself. If the contract stayed the whole judgment and promised in consideration thereof to pay any part thereof affirmed in the supreme court which remained unpaid thirty days after the remittitur was filed, it remains a party to the action and liable until that obligation is satisfied.
As to jurisdiction of the subject matter of the motion: It is urgently claimed by the respondent that the district court was without jurisdiction to render the judgment on the undertaking which was entered. As we understand respondent's argument on this phase it is to the effect that it becomes necessary for this court to construe the bond to determine whether the district court had jurisdiction to enter the judgment. Quoting from Freeman on Judgments, 5th ed., vol. 1, pp. 444, 445, respondents' argument proceeds:
" 'Aside from these cases in which the purported judgment is in reality no judgment, and considering those cases in which there has been an attempt at judicial action by a competent court, a judgment is not regarded as void unless there was a total lack of jurisdiction to render it. There are in general three jurisdictional elements in every valid judgment namely, jurisdiction of the subject matter, jurisdiction of the person,and the power or authority to render the particular judgment. For the absence of any one of these elements, when properly apparent, the judgment may be vacated at any time, whether before or after the term or the time limited by statute for motions on statutory grounds, either on motion or of its own volition without suggestion.' "
The phrase in italics may be misleading. This matter is somewhat clarified by the quotation from Gile v. Wood, 32 Idaho 752,188 P. 36, as follows:
"In addition to the jurisdiction of the parties and the subject matter, it is necessary to the validity of a judgment *Page 616 that the court should have jurisdiction of the question which its judgment assumes to decide, or of the particular remedy or relief which it assumes to grant."
In the Gile case an action was brought for the foreclosure of a mortgage. No allegation of indebtedness of defendant to plaintiff was contained in the complaint or claim made for a deficiency judgment. Nevertheless in the decree deficiency judgment was given. On motion, this provision of the decree was stricken as void for want of jurisdiction to award deficiency judgment. Had a question of right to deficiency judgment been presented to the court, and had the right to such relief been dependent upon a judicial construction, a very different question would have arisen on the motion to declare void. In such case clearly there might have been error but the judgment would not have been void. The vice in Gile v. Wood which rendered part of the judgment void was that the court adjudged there was a right to deficiency judgment though no such question was submitted to the court. The court's jurisdiction was not dependent upon a proper construction of any document. It was dependent upon the question of whether right to deficiency judgment was submitted to the court. That issue not being presented the judgment upon it was held to be void for want of jurisdiction to adjudge it, and it was set aside on motion. (See, also, Maloney v. Zipf, 41 Idaho 32, 237 P. 632.)
In the case at bar the only question presented to the court was as to right to judgment on the bond which was presented to the court by appellants in the manner provided by statute for the submission of that issue. This challenged judicable inquiry.
The question or issue presented was, Did the Surety Company, in its undertaking, become a party liable for every part of the judgment appealed from which might be affirmed by the supreme court, or did it stipulate only as to such judgment or part thereof as might be affirmed against the Singer Sewing Machine Company? To answer this question the court must look to the bond. The issue required a construction *Page 617 of the bond as a whole. The trial court had jurisdiction of this question. It construed the bond in favor of appellants and against the Surety Company. It was not only in that court's power, but it was its duty, to decide the question submitted. (In re Clerf, 55 Wash. 465, 104 P. 622; Windfrey v. Benton,25 Okl. 445, 106 P. 853.) Whether it decided right or wrong its decision was a judgment which could be reviewed for error, if there was error, only by this court on appeal. (Bunnell Eno etc. Co. v. Curtis, supra; Taylor v. Hulett, supra; Wylliev. Kent, supra; United States Nat. Bank v. Eldredge, supra.) On appeal the question could be re-examined. The undertaking cannot be examined and its legal effect as to this issue be determined by us on this appeal. We may consider it only in so far as to determine whether its wording is such that it afforded color of legal right in appellants to judgment. That is to say, whether appellants' motion presented a legitimate question and was not an imposition or fraud upon the court. We think, regardless of what our construction of the bond might be, it cannot be said appellants held no right to submit the question. Nor can it be said that such submission was a fraud upon the court and on that ground its judgment was void.
We find the trial court, upon the motion for judgment on the bond, had jurisdiction of the parties and jurisdiction of the subject matter; that an issue was presented and it had jurisdiction to construe the undertaking and decide the issue which its judgment assumes to decide. It follows the judgment was not void, even if erroneous in the construction, and that the trial court committed error in annulling and vacating it as void.
The order vacating the judgment is reversed, with costs to appellants.
Lee, C.J., and Givens and Varian, JJ., concur.
Petition for rehearing denied. *Page 618