Kelly v. Leachman

SULLIVAN, C. J. This is an appeal from the judgment and order overruling motion for a new trial. A motion was made to dismiss the appeal, on the ground that the undertaking was void 'for uncertainty. In the ^preamble of the undertaking it is recited that the appeal is from the judgment, and from the order denying a motion for a new trial. And in the obligation the obligors agreed that said appellants will pay all damages and costs that may be awarded against them on the “appeal.” On the authority of Sebree v. Smith, 2 Idaho, 359, 16 Pac. 477; Motherwell v. Taylor, 2 Idaho, 148, 9 Pac. 417, Eddy v. Vanness, 2 Idaho, 101, 6 Pac. 115, and Schiller v. Small, 4 Idaho, 422, 40 Pac. 53, the appea] must be dismissed. This [523] question has been passed upon so frequently by this court that the wonder is that attorneys are not more careful in preparing their undertakings on appeal. The motion is granted, and the appeal dismissed; costs of this appeal granted to the respondent. Huston and Quarles, JJ., concur.