England v. Nelson

BUDGE, C. J. This is an appeal from a judgment dismissing an appeal from the probate court to the district court. One of appellants’ attorneys, when the appeal was taken from the probate court, gave his personal check to the probate judge in lieu of filing an undertaking on appeal. The only question involved is whether the giving of this cheek to the probate judge was “a deposit with the court of a sumcof money equal to the amount of the required undertaking. ’ ’ It was stipulated on the motion to dismiss the appeal that the check was never presented' for payment, that it was in an amount sufficient, if in money, to have constituted a proper deposit in lieu of an undertaking on appeal, that the probate judge receipted for it in writing, making the following entry upon his docket: “Appeal bond............................99.20 Court costs............. 6.85 Trans, on appeal........................ 12.00 108.05 ‘ ‘ State of Idaho, County of Bingham, — ss. “Received from Hansbrough & Gagon, as attorney, the sum of One Hundred Eight and 05/100 Dollars for fees and cash bond, England vs. Nelson. “E. A. DOUD, “Probate Judge.” [688] —that the check was delivered to the clerk of the district court with the transcript of the record on appeal, that George F. Gagon, who gave the check was and is solvent, and that the check could have been cashed if presented. The statute permitting a deposit in lieu of an undertaking in such cases is as follows: Rev. Codes, Section 4778. “In all civil cases arising in probate and justice courts, where an undertaking is required by this code, a deposit with the court of a sum of money equal to the amount of the required undertaking may be received and held by the court in place of said undertaking.” This court held in Smith v. Field, 19 Ida. 558, Ann. Cas. 1912C, 354, 114 Pac. 668, that the deposit of a certified cheek was a sufficient compliance with the foregoing statute. In that case this court said: “ .... No question arises as to the solvency of the bank on which this check was drawn and by which it was certified. For the purposes of the case, it is practically admitted that the bank solvent and that the check would be paid on presentation. It is equally clear that the justice of the peace might have declined to receive the check. He might have demanded the money instead and refused to receive the cheek. He did not do this, however. He received the cheek and treated it as so much money, and accordingly certified the case up to the district court as required by statute upon the theory that a money deposit had been made. The check could have been cashed by the justice of the peace or by the clerk of the district court. Apparently, however, the officers seemed to be content with the cheek and treated it as so much money. While it was not ‘the legal medium of payment’ (Born v. First National Bank, supra, [123 Ind. 78, 18 Am. St. 312, 24 N. E. 173, 7 L. R. A. 442]), it was the substitute for money which is commonly and generally used these days in business and commercial transactions and likewise in legal proceedings. The supreme court of Nevada in Alt v. California, F. S. Co., 18 Nev. 423, 4 Pac. 743, has held to the same effect.” Upon the authority of the above case, we think the appellant has substantially complied with the statutory require [689] ments, in that, being solvent, he gave his check for a proper amount, which check was accepted by the probate judge, and treated as cash. The judgment is reversed. Costs are awarded to appellants. Morgan and Rice, JJ., concur.