Zienke v. Northern Pacific Railway Co.
Idaho Supreme Court
APPEAL from District Court, Kootenai County. Respondent contends that the undertaking was invalid because executed before the appeal was taken. But this contention cannot be sustained either on principle or on authority. The bond was entered into by the parties knowing the facts, i. e., that the appeal had not yet been taken, and there being no fraud in the matter the sureties would be estopped to deny the truth of the allegations in the bond.
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APPEAL from District Court, Kootenai County. Respondent contends that the undertaking was invalid because executed before the appeal was taken. But this contention cannot be sustained either on principle or on authority. The bond was entered into by the parties knowing the facts, i. e., that the appeal had not yet been taken, and there being no fraud in the matter the sureties would be estopped to deny the truth of the allegations in the bond. (1 Eney. of PI. & Pr. 1019, and cases cited in notes 1 and 2.) The statute requires the filing of the bond after service of the notice of appeal, but…
1Opinion of the CourtQuarles, C. J.
The respondent moves to dismiss both appeals in this case — the appeal from the order denying a new trial, and the appeal from the judgment. The motion to dismiss the appeal from the order denying a new trial is based upon the ground that the undertaking upon appeal was executed on February 5, 1901, by the sureties thereto, and the notice of appeal was not served or filed until the eighth day of February, 1901, nor was the order denying a new trial entered by the clerk until February 8, 1901. It appears from the record that the said order denying a new trial was made by the district judge, at…
2Cases cited1 opinion
- Richards v. ScottIdaho Supreme Court · 1901
3Cited by4 opinions
- Robinson v. St. Maries Lumber Co.Idaho Supreme Court · 1920
- Eagle Rock Timber, Inc. v. Teton CountyIdaho Supreme Court · 2023
- Isaak v. JourneyIdaho Supreme Court · 1932
- State v. JacobsonIdaho Supreme Court · 1935