Weil v. Sutter , 4 Idaho 748 ( 1896 )

MORGAN, C. J.

(After Stating the Facts as Above). — The •defendants filed their bond on appeal, which is substantially in the following form: “Whereas, Menelaus Chapman, Bernard .Erp Brockhausen, and Edward Erp Brockhansen, defendants in the above-entitled action, have appealed to the supreme court •of the state of Idaho from the judgment rendered and entered against the above-named defendants in the said district court in favor of the above-named plaintiff on the 29th of December, 1894, for the recovery of and from the said defendant Fred Sutter, one of the above-named defendants, of the sum of $1,237.75, and the further sum of $100 attorneys’ fees, and the further sum of $1,749.30, making the aggregate amount of said judgment in favor of said plaintiff from the said Fred Sutter of $2,987.05. By said judgment it was further decreed that all and singular the premises described in the complaint, and embraced in a mortgage and power of attorney, and described in said judgment, or so much thereof as might be sufficient to pay the amount due to the plaintiff, Ignatz Weil, principal and interest, attorneys’ fees, costs, and expenses of sale, which might be sold separately without material injury to the parties’ interests, be sold at public auction by or under the direction of the sheriff of the county of Kootenai, state of Idaho; •and also the said defendants above named have appealed from the order refusing said defendants a new trial, made and entered in the minutes of said court on the tenth day of June, 1895: Now, therefore, in consideration of the premises and of such appeal, we, the undersigned, residents of the county of Kootenai, state of Idaho, do hereby jointly and severally undem take and promise on the part of the appellants that the said -appellants will pay all damages and costs which may be awarded ■on the appeal, or upon a dismissal thereof, not exceeding $300, to which amount we acknowledge ourselves jointly and severally-bound.” The plaintiff moves the court to dismiss the said appeal on the ground that the bond is void for uncertainty in this: That an appeal is taken both from the judgment and decree and also from the order denjdng the motion for new trial, and the bond recites, “Now, therefore, in consideration of the-premises and of such appeal,” without designating which appeal is intended by this description. This bond is' substantially in the same form as the one in the case of Cronin v. Mining Co., Idaho, 438, 32 Pac. 53, and is void for uncertainty, for the reasons stated in the above cause. The appeal must, be dismissed on the authority of that case, and also of Eddy v. Van Ness, 2 Idaho, 101, 6 Pac. 115. (See, also, Mathison v. Leland, 1 Idaho, 712.) Appeal dismissed.

Sullivan and Huston, JJ., concur.