Coleman v. Perry

PER CURIAM. — This cause was brought into this court upon appeals from the judgment, and an order denying defendant’s motion for a new trial. A motion has been submitted by Respondent to dismiss the appeals on the ground [238] that the undertaking is void for ambiguity. This instrument is identical in form with that considered in Baker v. Butte City Water Co., 24 Mont. 31, 113, 60 Pac. 488, 817. It was not held in that case, as respondent contends, that such an undertaking is void, but only that it is merely insufficient or imperfect, in that, though it refers to both appeals, it does not contain alternative conditions referring to each separately, so as to bind the sureties to meet all the contingencies which may arise in the disposition of the case by this court. The appellants having filed with the clerk of this court a good and sufficient undertaking, approved by the chief justice, before the motion to dismiss was heard, the motion must be denied. (Code of Civil Procedure, Sec. 1740; Woodman v. Calkins, 12 Mont. 456, 31 Pac. 63, cited in Greeks. Bozeman Waterworks Co., 22 Mont. 327, 56 Pac. 362.) Denied. Mr. Justice Hunt, being absent, takes no part in the foregoing decision.