Frary v. Dwyer

ME. CHIEF JUSTICE BBANTLY delivered the opinion of the court. Tlie defendant, and respondent, lias submitted a motion to dismiss the appeals herein on the ground that the undertaking filed with the clerk of the district court does not conform to the requirements of the statute. The appeals are from a judgment and an order denying plaintiffs motion for a new trial, and the undertaking’ is the same in form and substance as those approved in Watkins v. Morris, 14 Mont. 354, 36 Pac. 452, and in the following eases; Ramsey v. Burns, 24 Mont. 234, 61 Pac. 129; Nolan v. Montana Central Railway Company, Id. 327, 61 Pac. 880; Livingston Smelting and Reduction Company v. Lynch et al., Id. 241, 61 Pac. 1134; Mahoney v. Butte Hardware Company, Id. 242, 61 Pac. 1134; Boucher v. Barsalou, Id. 242, 61 Pac. 1134; Teague v. John Caplice Company, Id. 242, 61 Pac. 1134. The respondent relies upon the case of Baker v. Butte City Water Company, 24 Mont. 31, 113, 60 Pac. 488, 817 ¡ of this case it was said in Ramsey v. Burns', supra, that it if “based upon correct reasoning, reaches a correct result, and is approved.” But a clear distinction is pointed out, between tint form of the undertaking examined in Baker v. Butte City Water Company and of those examined and approved in Wat-Icins v. Morris and the other cases cited supra. Baker v. Butte City Water Company is not in point. The motion is denied. Denied. Mu. Justice Pigott, having been of counsel during the pendency of this cause in the district court, takes no part in this decision.