Zienke v. Northern Pacific Railway Co.

QUARLES, 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 chambers, on the fifth day of February, 1901, and by the said judge indorsed; "Filed January 26, 1901. A. B. Mayhew, Judge” — but was not filed by the clerk until February 8, 1901, upon which date the notice of appeal was served and filed, and the said undertaking .upon appeal, executed three days prior thereto, was filed. These facts appear by the record in this case, but accompanying the motion of respondent is the affidavit of the deputy district clerk, in which it is stated that said notice was not filed by the clerk until the seventh day of March, 1901, upon which day it was indorsed by the clerk, “Filed February 8, 1901.” No reason is given for such indorsement, nor is any reason given or explanation whatever found in the record as to why the clerk did not indorse said order as filed upon the date that the same was made. It is also contended that the said o'rder has not been entered in the minutes or upon the records of said court. Eespondent contends that this appeal was prematurely taken. This court must, however, upon the record, hold that said order denying a new trial was filed by the clerk on the eighth day of February, 1901, and that such filing was .a sufficient entry of such order. From this ruling it appears that the appeal was taken, not prematurely, but at a time when the same could be properly taken. The other ground of the motion — that the sureties signed and 751 verified the undertaking upon appeal three days before the order denying the motion for a new trial was filed — is not well taken. The record shows that the undertaking was filed simultaneously with the notice of appeal, upon the same day; and both upon principle and upon authority, it must be held that said undertaking was not executed until February 8, 1901, the time of its delivery to the clerk. Tinder the provisions of our code, the appellant had five days in which to file exceptions to the sufficiency of the sureties upon said undertaking, and the record shows that this was done. The record also shows that upon the trial of said exceptions before the probate judge of Kootenai county, as provided by our Code of Civil Procedure, the Original sureties to said undertaking appeared and were examined, and other and further sureties also app eared on behalf of the appellant and were examined, viz., E. P. Manor and W. J. McClure, and that said probate judge found and adjudged that each of said four sureties was a resident, freeholder, and householder in the county of Kootenai, and that each of said sureties was the owner of property subject to execution to the extent of more than $300 in Kootenai county, state of Idaho, whereupon said probate judge approved and accepted said four sureties, and each of them. Said undertaking upon appeal was sufficient and valid, and bound the sureties therein. (See Richards v. Scott (decided at this term), ante, p. 726, 65 Pac. 433.) The motion to dismiss the appeal from the order denying a new tr-ial is therefore overruled and denied. The motion to dismiss the appeal from the judgment is. based upon the following grounds: 1. That the respondent excepted to the sufficiency of the sureties within the statutory time. 2. That appellant’s record on appeal-does not contain all the papers used, heard, and considered on the motion of the appellant for a new trial herein, the following papers being omitted from said record, to wit: (1) The respondent’s motion to strike from the files the appellant’s bill of exceptions; (2) the order of the district judge overruling said motion; (3) the motion of respondent to dismiss appellant’s motion-for a new 752 irial; (4) the order of the district judge overruling said motion. What we have said in regard to the exceptions to the sufficiency of the sureties disposes of the first ground of the motion to dismiss the appeal from the judgment. The reasons given as the basis of the second ground for the motion to dismiss the appeal from the judgment are not well founded. The reasons stated are not grounds for dismissing the appeal, but are grounds for suggestion of diminution of the record, provided the papers therein mentioned are material to the consideration of the appeal from the judgment. Upon appeal from the judgment, the record consists of the judgment-roll. If any part of that record has been omitted, such omission is not ground for the dismissal of appeal, but the respondent or either party may have the omission supplied by suggestion of diminution of the record, as provided in the rules of this court. The motion to dismiss the appeal from the judgment is there-iore denied. Sullivan and Stockslager, JJ., concur.