Opinion
No. 5319.
December 15, 1928.
APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.
Motion to dismiss appeal. Motion granted.
Peterson, Baum Clark, for Appellant.
This court in the case of Meservy v. Idaho Irrigation Co., Ltd., 35 Idaho 257, 205 P. 559, had for its consideration an undertaking on appeal, which is set out in full in the opinion in that case. The undertaking there considered did not, either by language or reference, purport to be an undertaking under sec. 7154, but confined itself entirely to the language of C. S., sec. 7155. Indeed, if the court will read that undertaking, it quoted word for word from the provisions of sec. 7155 and did not purport to quote anything from sec. 7154. This is obvious because of the words or on a dismissal thereof" which appear in one form in sec. 7155 and in another in sec. 7154. This court held squarely in an opinion by Mr. Justice McCarthy that this bond was sufficient as an undertaking on appeal.
Witty Anderson, for Respondent.
The appeal bond is necessary to give this court jurisdiction, unless the same is waived. (C. S., secs. 7153, 7154.) Supersedeas bond is an entirely separate and distinct bond and is conditioned differently and is given to stay execution of the judgment. (C. S., sec. 7155.)
The supersedeas bond cannot be made to perform the office of an appeal bond. ( Weiser River Fruit Assn. v. Feltham, 31 Idaho 633, 175 P. 583.)
It is sought to dismiss the appeal on the ground that no undertaking for costs required by C. S., sec. 7153 has been filed. Appellant insists that the following is sufficient as such an undertaking:
"Whereas, . . . . A.J. Hewlett has appealed . . . . from a judgment . . . . and
"Whereas, the said A.J. Hewlett desires to give supersedeas undertaking on such appeal for the purpose of securing a stay of execution as required and provided by section 7155, Idaho Compiled Statutes;
"Now, therefore, said A.J. Hewlett, as principal, and W.D. Service and L.G. Hewlett, as sureties, do hereby obligate themselves, jointly and severally, to said E.B. Rowe, plaintiff and respondent herein, under and pursuant to the obligations of section 7155, Idaho Compiled Statutes, 1919, in the sum of $2,046.80, the same being double the amount of the judgment herein, plus costs, as provided by section 7155, Idaho Compiled Statutes."
In Weiser River Fruit Assn. v. Feltham, 31 Idaho 633, 175 Pac. 583, this court said that an undertaking in double the amount of the judgment, "stating that its purpose is to stay execution on appeal, and following Revised Codes, sec. 4810," (now C. S., sec. 7155) "which provides for undertaking for that purpose, will not be construed to include the $300 undertaking on appeal required by Revised Codes, secs. 4808 and 4809" (now C. S., secs. 7153 and 7154). In Meservy v. Idaho Irrigation Co., Ltd., 35 Idaho 257, 205 P. 559, this court held that an undertaking in double the amount of the judgment appealed from, plus $300, may serve the double purpose of an undertaking on appeal and an undertaking for stay of execution, if it substantially meets the requirements of both C. S., secs. 7154 and 7155. In Wall v. Woods, 40 Idaho 522, 234 P. 145, it was held that "if a bond, in form both appeal and supersedeas, is in amount over $300, the appeal will not be dismissed." In Van Sicklin v. Mayfield Land etc. Co., 41 Idaho 673, 241 P. 1022, it was held, that an undertaking, in the sum of $2,100, the conditions of which were substantially the same as in Meservy v. Idaho Irrigation Co., Ltd., supra, was sufficient as an appeal bond, it not being possible to determine the amount of the relief awarded by the decree. As in the case of Weiser River Fruit Assn. v. Feltham, supra, here we find an undertaking in exactly double the amount of the judgment, worded as a supersedeas bond and plainly intended as such.
To perfect an appeal to this court, among other things, the statute, C. S., sec. 7153, requires the filing of an undertaking, a $300 appeal bond. However, the statute does not require the filing of a supersedeas bond to perfect an appeal. It rather permits the filing of a supersedeas bond to stay the execution of the judgment. While the undertakings provided by C. S., secs. 7153 and 7155 may be included in one and the same instrument ( Meservy v. Idaho Irrigation Co., Ltd., supra), their purposes are entirely different.
As stated, the undertaking in question is a supersedeas. It is not the appeal bond required by C. S., sec. 7153, and to so hold would overrule the decision in Weiser River Fruit Assn. v. Feltham, supra, which we are unwilling to do. It has never been held by this court that an undertaking in the form of a supersedeas (C. S., sec. 7155), in double the amount of the judgment, is sufficient as the appeal bond required by C. S., sec. 7153. For the reason, therefore, that the required undertaking for costs on appeal has not been filed, the appeal will be dismissed.
Appeal dismissed.
Budge, Givens and Taylor, JJ., and Hartson, D. J., concur.