DocketNumber: No. 2,616
Citation Numbers: 38 Mont. 419, 100 P. 228
Judges: Brantlt, Holloway, Smith
Filed Date: 3/6/1909
Status: Precedential
Modified Date: 9/9/2022
delivered the opinion of the court.
On June 5, 1901, Lorenz Kappler died in Lewis and Clark county, leaving a last will and testament, under the terms of which his entire estate was devised to his wife, Rosalie Kappler, for life, with remainder in equal shares to the children of his brothers and a sister mentioned by name. Rosalie Kappler was named as executrix. The will was duly presented for, and admitted to, probate by the district court of Lewis and Clark county, and on July 14, 1902, the property disposed of thereby
The original undertaking recites that the appellant “will pay all damages and costs which may be awarded against him on said appeals or any one of them or either of them, or on a dismissal of any one or either of them, not exceeding the sum of $300, otherwise this obligation to become null and void; otherwise to remain in full force and effect.” The last two clauses render this instrument nugatory as an indemnity for costs in any amount, because in whatever sense the term “otherwise” is used the instrument is meaningless. But, passing this defect by, the penalty is insufficient, and the instrument is abortive on that ground. The statute requires an undertaking in the sum of $300 to effectuate each appeal, and unless this requirement is met, or the undertaking is waived, or a deposit is made to take its place, the appeal is ineffective. (Revised Codes, secs. 7100, 7101.) These provisions have frequently been considered by this court, and to support the conclusions stated it is only necessary to refer to some of the eases in which they have been construed and applied. (Creek v. Bozeman W. W. Co., 22 Mont. 327, 56 Pac. 362; Murphy v. Northern Pac. Ry. Co., 22 Mont. 577, 57 Pac. 278; Grage v. Paulson, 23 Mont. 337, 59 Pac. 1; Washoe Copper Co. v. Hickey, 23 Mont. 319, 58 Pac. 866.)
It may well be said that the order of August 1, granting letters to Milch, and the formal order of appointment made on August 3, are one and the same order, and hence that there are in fact but two appeals. This concession does not help the matter, however, for the references in the undertaking are to the appeals generally, and, under the rule stated in the cases cited, it is void for ambiguity on this ground. Nor are the appeals preserved by the new undertaking filed, since its purpose and effect was to obviate the defect in the original undertaking occasioned by the two clauses in the paragraph quoted above. The amount of the penalty named in it is the same,
Whatever may be the number of appeals taken at the same time, only one undertaking need be filed (Revised Codes, sec. 7107), but the penalty in all cases, with the exception mentioned above, must be sufficient in amount to support all of them, and the references must be so made to each of them that the penalty may be properly apportioned.
The appeals are dismissed.
Dismissed.