Opinion
No. 5979.
February 21, 1933.
APPEAL from the District Court of the Eleventh Judicial District, for Twin Falls County. Hon. Wm. A. Babcock, Judge.
Motion to dismiss appeal. Denied.
Vaughn A. Price and Ray Agee, for Appellant.
In People's Sav. T. Co. v. Rayl, 45 Idaho 776, 265 P. 703, the supreme court of Idaho specifically held, and not by way of dictum, that service of notice of appeal is complete when notice with copy thereof was deposited in mail, the court saying:
"Regardless of the acceptance of service of the notice of appeal by plaintiff on February 9th, it was a proper case for service by mail, and such service being properly made, the service of the notice on plaintiff was complete on February 7th, when the notice with copy thereof, was deposited in the mail. (C. S., sec. 7199.)"
The court also states in the foregoing case that:
"The service by mail upon February 7th is shown by affidavit upon this hearing; and such showing in this court may properly be considered upon motion to dismiss."
In Mendini v. Milner, 47 Idaho 322, 276 P. 35, the court held:
"Where parties to be served with notice of appeal resided at different place from party making service, it was proper to serve such notice of appeal by mailing, under C. S., sec. 7200."
In Isaak v. Journey, ante, p. 274, 13 P.2d 247, the Idaho supreme court considering the statute as it now exists, which intervenor urges creates the situation requiring service of the undertaking on the adverse party, has announced that an appeal is perfected by filing and serving notice of appeal and filing an undertaking within five days, saying:
" The undertaking being filed, and the service of the notice of appeal occurring on the same day, the appeal was perfected on that date conformable to the requirements of C. S., Sec. 7153."
The statute specifically prescribes what must be contained in an undertaking, sec. 12-613, I. C. A., reciting:
"Whenever a party to an action or proceeding, desires to give an undertaking provided to be given by law, it shall be sufficient if the sureties sign an undertaking indicating that they are thereby bound to the obligations of the statute requiring the undertaking to be given. . . ."
This statute does not require that the obligee be named in the bond.
The undertaking herein was to the one and only effect that appellant would pay all damages and costs which might be awarded against appellant on the appeal or a dismissal thereof. The court has placed just such an interpretation upon a similar bond in the case of Van Sicklin v. Mayfield Land etc. Co., 41 Idaho 673, 241 P. 1022.
Merrill, Merrill, for Respondent.
It is true that the statute prescribing the giving of the undertaking is silent as to its service. However, this same statute (now sec. 11-203, I. C. A.) was amended in 1907 so as to provide in effect that if the undertaking be insufficient or defective, such insufficiency or defect shall be deemed waived unless the respondent within twenty days after the filing of the undertaking shall file and serve on the appellant, or his attorney, a notice pointing out the defect. The amendment, by implication, requires notice of the undertaking and if appellant files a defective or void undertaking and fails and neglects to serve the same upon respondent, he is certainly in no position to contend the defect is waived because respondent fails to point the same out. Or conversely, by the amendment of the statute, the legislature created a situation requiring the service of the undertaking.
Chapter 21, secs. 40-2101 and 2117, I. C. A., require the signing of such bonds by a resident agent authorized to act on behalf of such company. A company which has not qualified could not have such an agent and hence the bond is of no effect and is void. (See Gonzaga University v. Masini, 44 Idaho 113, 255 Pac. 413.)
We are not unmindful of the case of Van Sicklin v. Mayfield, 41 Idaho 673, 241 P. 1022, wherein it is held that:
"The bond is good even though the name of the obligee does not appear therein."
The language of the court in the Van Sicklin case is as follows:
"Since the law does not require that the undertaking specify the names of the parties whom it indemnifies, the mere omission of the names of Van Sicklin and Adams does not invalidate the undertaking."
But this is not our point. Here the bond is not only silent as to the respondent but it is expressly limited to the protection of the plaintiff.
Judgment was entered herein August 19, 1932. November 17, 1932, the ninetieth day thereafter, attorneys for appellant mailed a copy of the notice of appeal from Twin Falls to attorneys for respondent residing at Pocatello, received the following day.
Respondent moves to dismiss the appeal because, first, the notice of appeal was not served within the statutory time; second, there was no service of any undertaking on appeal made upon said respondent or its attorneys; third, that the undertaking was void, as not being executed by a corporation having the right to transact business in Idaho, that no resident agent had countersigned the undertaking, and that the undertaking was not given for the protection of respondent.
Service of the notice of appeal by mail is proper ( Mendini v. Milner, 47 Idaho 322, 276 P. 35; Isaak v. Journey, ante, p. 274, 13 P.2d 247), and such service is complete when the notice is deposited in the mail. ( People's Sav. Trust Co. v. Rayl, 45 Idaho 776, 265 P. 703; Isaak v. Journey, supra.) Hence the service of the notice was sufficient.
Sections 11-202 and 11-203, I. C. A., do not require that the undertaking on appeal be served on the adverse party; hence failure to do so is not ground for dismissal.
In the body of the undertaking, the name of the surety appears as the "Great American Indemnity Company," which was correct. However, the undertaking was signed "Great Indemnity Company of America." The "Great American Indemnity Company of New York" is authorized to transact business in Idaho, and the "Great Indemnity Company of America" is not.
However, the corporate seal affixed to the bond designated the company as "Great American Indemnity Company," which indicates that the misnomer at the bottom of the bond was a mere clerical error, and as such is not ground for dismissal. (3 C. J., p. 1150, sec. 1216, note 28.)
The undertaking was signed "Great Indemnity Company of America By John B. Robertson Attorney in fact." At the time of signing the same, he had a power of attorney authorizing him to sign the bond, and was the duly authorized and licensed agent of the "Great American Indemnity Company of New York" as provided by sec. 40-901, I. C. A., shown by the certificate of the director of insurance of the state of Idaho. This was sufficient. ( Snyder v. Raymond, 48 Idaho 810, 285 P. 478.)
Respondent does not contend that Robertson was not attorney-in-fact and authorized agent of the "Great American Indemnity Company," but maintains that the "Great Indemnity Company of America" had no resident agent authorized to sign such undertaking.
However, January 25, 1933, before the hearing of the motion to dismiss, appellant forwarded a good and sufficient undertaking under the provisions of sec. 11-217, I. C. A., to the clerk of the supreme court for approval by a justice thereof. Such undertaking was approved and filed before the hearing, thus legitimately correcting a defective, and not a void bond.
The last objection is that the surety obligated itself to the said "plaintiff" (appellant) and that thereby the bond is void, as not securing respondent. It has been held by this court that the bond is good even though the name of the obligee does not appear therein. ( Van Sicklin v. Mayfield Land Livestock Co., 41 Idaho 673, 241 P. 1022. See, also, Burger v. Sinclair, 24 N.D. 315, 140 N.W. 231.)
The bond herein provided that the surety "does hereby obligate itself under such statutory obligations in the sum of $300." Thus it was a statutory bond, and the surety could not have avoided payment thereof to the party adverse to appellant in case of damages and costs awarded against him on appeal or on a dismissal thereof. (Sec. 11-203, I. C. A.)
The undertaking in question was defective only, and not void, and since there was no objection made within twenty days after its filing, such defects were waived. (Sec. 11-203, L. C. A., and cases annotated, thereunder.)
Motion to dismiss denied.
Budge, C.J., and Morgan and Holden, JJ., concur.