That part of the opinion which holds it was error to sustain general demurrers to the answers, wherein facts are alleged sufficient to constitute a defense to the complaint, and that the judgment appealed from should be reversed, is sound and I concur in it.
Although the parties have, in this case, referred to and treated Wayne v. Marquardt, 54 Idaho 211, 30 P.2d 369, as an appeal from a judgment, the fact must not be lost sight of that, as in the opinion in that case stated, it was an appeal from an order denying a motion for a new trial, which order was sustained on the ground that appellants did not give notice of intention to move for a new trial, nor did they move for a new trial, within the time prescribed by statute; also that the district court was without jurisdiction to entertain the motion and properly denied it.
The district court being without jurisdiction to hear and determine the motion for a new trial because it was neither noticed nor made within the time prescribed by statute, the motion was a nullity and should have been stricken from the files. The action of the judge denying it amounted to an order striking it because of lack of jurisdiction to consider it.
This state of facts presents the question: Does an appeal from an order denying a void and ineffectual attempt to move for a new trial, coupled with a supersedeas bond given to stay the execution of the order, stay the execution of the judgment from which no appeal was taken?
As a general rule, in order for a supersedeas bond to stay the execution of a judgment an appeal must be taken from the judgment. (Anderson v. Tingley, 20 Wash. 592, *Page 485 56 P. 371; Carit v. Williams, 67 Cal. 580, 8 P. 93; DeLeonisv. York, 140 Cal. 333, 73 P. 1058; Powell v. Bradley,86 Kan. 198, 119 P. 543; Inspiration Consol. Copper Co. v. Mendez,19 Ariz. 151, 166 P. 278; Pratt v. Western Stage Co.,26 Iowa, 241; City of Louisville v. Muldoon, (Ky.) 43 S.W. 867;Magruder v. Kittle, 2 Neb. (Unof.) 418, 89 N.W. 272.) It is also a general rule that when an order from which an appeal has been taken is self-executing and no process is required for its enforcement, supersedeas has no application to it. There is nothing to stay or supersede. (People v. City of Westmoreland,135 Cal. App. 517, 27 P.2d 394.)
It has been held by the California supreme court that the giving of a supersedeas bond on appeal from an order denying a motion for a new trial stays the execution of the judgment. (Fulton v. Hanna, 40 Cal. 278; Tompkins v. Montgomery, 116 Cal. 120,47 P. 1006; Owen v. Pomona L. W. Co., 124 Cal. 331,57 P. 71; Holland v. McDade, 125 Cal. 353, 58 P. 9; Baldwin v.Superior Court, 125 Cal. 584, 58 P. 185.) In each case so holding a valid motion for a new trial had been made and denied. The reason given for the position taken by the California court, on this question is to be found in the following quotation from Fulton v. Hanna, above cited:
"Although an appeal from an order denying a motion for a new trial is in a different and distinct line of proceeding from a direct appeal from a judgment, still a reversal on appeal from the order denying a motion for a new trial and remanding the cause for retrial, as effectually vacates the judgment as a reversal of the judgment upon a direct appeal therefrom; . . . ."
That distinguishes the case before us from the California cases. In our case the motion for a new trial was void, because neither noticed nor made in time, and was ineffectual to bring about a reversal of the judgment or to procure an order remanding the cause for retrial. No order could have been made in that case by the trial judge, or by this court on appeal, which would have had any effect whatever on the judgment. *Page 486
Our decision in Wayne v. Marquardt to the effect that the attempted motion for a new trial was a nullity and that the district court was without jurisdiction to entertain it, seems to me to be decisive of the question before us. No motion for a new trial having been noticed, or made in time, places the case in exactly the position it would be in if none had been attempted.
Assuming, but not deciding, an appeal from an order denying a valid motion for a new trial, coupled with asupersedeas bond, will prevent the issuance of an execution although no appeal has been taken from the judgment, I am notprepared to join in a decision that, when an ineffectualattempt has been made to move for a new trial and an appeal hasbeen taken from an order denying it, and a supersedeas bond hasbeen given, execution of the judgment which has not beenappealed from, is thereby stayed. In such a case there is noappeal from the judgment, no motion for a new trial, nothingbut a supersedeas bond with nothing to supersede.
The parties litigant may, if they so desire, proceed on the erroneous theory that the appeal in Wayne v. Marquardt was from the judgment and, therefore, the supersedeas bond stayed execution. We are not in position to follow that theory because we have made a record which recites the truth of the matter and which cannot be changed, nor can the facts therein stated be ignored.
Since the supersedeas bond did not stay execution of the judgment there can be no liability on the part of appellant, the sureties thereon.