Thum v. Bailey

SULLIVAN, J.

This is an appeal from the judgment and the order denying a new trial. Counsel for respondent has made a motion to strike out part of the transcript and also a motion to dismiss the appeal on two grounds. In our view of the matter it will be necessary for a determination of the case to decide one of the points raised by the motions, and that is the sufficiency of the undertaking on the appeals, one appeal being from tbe judgment and one from the order denying a new trial.

In the preamble of the undertaking is recited the fact that the appeals are from the judgment and the order overruling the motion for a new trial, and the obligation is as follows:

“Now, therefore, in consideration of the premises, and of such appeal, we, the undersigned, do hereby jointly and severally undertake and promise on behalf of the defendant that the said defendant will pay all damages and costs which may be awarded against defendant on the appeal, or a dismissal thereof, not exceeding the sum of $300, three hundred dollars, for which amount we acknowledge ourselves jointly and severally bound.” • •

This court has held in many cases that where an appeal is taken both from the judgment and from the order denying a new trial, and it is recited in the obligation of the undertaking that the obligors undertake and promise that the appellant will pay all damages and costs awarded against him on the “appeal or a dismissal thereof,” it is void for uncertainty, and that a motion to dismiss the appeal must be sustained. (Motherwell v. Taylor, 2 Idaho, 139, 9 Pac. 417; Kelly v. Leachman, 5 Idaho, 521, 51 Pac. 407, and authorities there cited; Baker v. Oregon Ry. & Nav. Co., 8 Idaho, 36, 66 Pac. 806.)

On the authority of those cases the appeal must be dismissed, and it is so ordered, with costs in favor of respondent.

Stockslager, C. J., and Ailshie, J., concur.