Cronin v. Bear Creek Gold Mining Co. , 3 Idaho 438 ( 1892 )

MORGAN, J.

This action was brought in the district icourt of Elmore county, by plaintiffs against defendant, upon ja.n adverse claim to mining property. The cause was tried beiore the court without a jury November 4, 1891, and a judgment of nonsuit and for costs was rendered on the above date. Motion for new. trial, having, been made, was heard before the judge of said court, at chambers, on the seventh day of October, 1892, and overruled on said date, as appears by the record. On ■October 21, 1892, plaintiffs gave notice of appeal both from the judgment and from the order overruling motion for new trial. TJndertaHng on said appeal was duly filed, in the following form:

“[Title of Court and Cause.]

“Whereas, the plaintiffs in the above-entitled action are about 'to appeal to the supreme court of the state of Idaho, from a judgment rendered against them in the above-entitled court on the fourth day of November, 1891, and in favor of the defendant, for the sum of eighty dollars and twenty-five cents, and also from the order denying the motion for new trial made and entered on the seventh day of October, 1892: Now, therefore, in consideration of the premises and of such appeal, we, 'the undersigned, residents of the state of Idaho, do hereby, j’ointly and severally, undertake and promise, on the part of the plaintiffs and appellants, that the said appellants will pay all damages and costs which may be awarded against them on ihe appeal, or a dismissal thereof,” etc.

Respondent moves to dismiss both appeals on the ground that the undertaking therein is void.

This bond is, in form, precisely like the bond in Mathison v. Leland, 1 Idaho, 712, and in Eddy v. Van Ness, 2 Idaho, 101, 6 Pac. 115, in both of which cases, decided in this court, the ■court held that the bond being but for one appeal, and not .specifying either, is void .as to both. On the authority of the above cases, both appeals are dismissed. Costs awarded to respondent.

Sullivan, C. J., and Huston, J., concur.