Davelin v. Post Falls Woolen Mills , 4 Idaho 735 ( 1896 )

SULLIVAN, J.

This action was commenced in the probate court of Kootenai' county, which court rendered judgment against the appellant corporation in favor of Davelin, respondent. Said corporation appealed from said judgment to the district court of said county, and filed an undertaking on appeal. The respondent thereupon excepted to the sufficiency of the sureties thereon. It appears from the record that the sureties failed to appear and justify as required by the provisions of section 4842 of the Revised Statutes. They, however, did appear and made affidavit before the probate judge some twelve days after the service of the notice excepting to the sufficiency of the sureties, but without notice to the adverse party. Thereafter, when the case w'as called in the district court, the respondent moved to dismiss the appeal on the ground that the sureties had failed to justify, as required by the provisions of section 4842 of the Revised Statutes, which motion was granted, and an order of dismissal entered. This appeal is from said order. The provisions of said section applicable to the question here involved are as follows: “The adverse party may except to the sufficiency of the sureties within five days after the filing of the undertaking and unless they or other sureties justify before the justice or judge from whom the appeal is taken within five days thereafter, upon notice to the adverse party to the amount stated in their affidavit, the appeal must be regarded as if no such undertaking-had been given.” Under those provisions, when the sufficiency of the sureties are excepted to, they or other sureties must appear and justify within the time therein stated, upon notice to the adverse party. If they fail to do so, the appeal must be regarded as if no undertaking had been given. The appearance of the sureties, and making affidavit, without notice to the adverse party, is not a, compliance with the provisions of said section. The adverse party has a right to notice, and to be present and question the sureties as to their financial responsibility. The order dismissing said appeal is affirmed, and costs of this appeal awarded to. the respondent.

Morgan, C. J., and Huston, J., concur.