Judd v. Ball

OPINION Respondents noticed a motion to dismiss the appeal from the judgment and from an order denying a motion for a new trial. The grounds alleged in the motion are that the undertakings filed in support of the appeals are insufficient. It is also alleged, that "said motion to dismiss the appeals will be made upon the further *Page 405 ground that the undertaking to stay execution is insufficient and void." 1, 2. After the notice to dismiss the appeals was served, appellant's counsel presented to the justices of this court an undertaking on appeal and an undertaking to stay execution, which, after their approval by the justices, were filed in this court. On the hearing of the motion, counsel for respondents conceded that the approved undertaking on appeal was a good and sufficient undertaking and that his motion to dismiss the appeals could not, therefore, be granted. We are of the same opinion. Section 27, Stats. 1937, c. 32, at page 62, provides for the giving of such an undertaking where the original is insufficient. Counsel for respondents argued that this court was without jurisdiction to approve the undertaking to stay execution, and moved to strike it. No notice was given that such a motion would be made. It is therefor denied. The motion to dismiss the appeals is denied. *Page 406