Wallace v. McKinlay

HUSTON, J. — This was an appeal from a judgment and from an order sustaining plaintiff’s demurrer to defendants’ amended answer. A motion to dismiss the appeal was filed by respondent. The motion enumerates several grounds, but upon the hearing but one ground was argued, viz., the insufficiency of the undertaking. The undertaking provided only “that said appellants will pay all damages and costs which may be awarded against them on the appeal or on a dismissal thereof,” without any reference to which appeal it was intended to apply. It is urged by the appellants that, as the order sustaining the demurrer was not an appealable order, the appeal therefrom should be treated as surplusage, and the undertaking be sustained upon the appeal from the judgment. We cannot agree with this contention. Appellants appealed from both the order and the judgment and the undertaking covering but one appeal. It is not the province of this court to say to 'which appeal it is intended to apply. Appellants must stand or fall by the record they have presented to this court, tinder repeated rulings of this court, the motion to dismiss is allowed, with costs to respondent. (See Kelly v. Leachman, decided by this court, and reported in 5 Idaho, 521, 51 Pac. 407, and cases there cited.) Sullivan, C. J., and Quarles, J., concur.