Chance v. Arcularius

OPINION On Motion to Dismiss Appeal By the Court, Badt, C. J.: Appellants, plaintiffs below, appealed from an adverse judgment and from the order denying their motion for [53] a new trial. Respondent has moved to dismiss the appeal from the order denying new trial upon the ground that such appeal is ineffectual for lack of an undertaking on such appeal. Appellants’ notice of appeal to this court recited that they appealed “from the judgment [describing it] and from an order denying a motion for a new trial [describing it].” On the same day they served and filed their undertaking on appeal reciting: “Whereas, the plaintiffs in the above entitled action have appealed * * * from a judgment entered against them in said action [describing it], now therefore in consideration of the premises and of such appeal, we, the undersigned, * * * do hereby jointly and severally undertake and promise, on the part of appellants that the said appellants will pay all damages and costs which may be awarded against them on the appeal, or on a dismissal thereof, not exceeding $300.00. * * *” After respondent had served and filed his notice of motion to dismiss the appeal from the order denying new trial on account of lack of bond, appellants submitted to the justices of this court an amended undertaking which recited that whereas the plaintiffs had appealed from the judgment and the order denying new trial, the sureties “do hereby jointly and severally undertake and promise, on the part of appellants that the said appellants will pay all damages and costs which may be awarded against them on the appeal from said judgment or said order denying motion for new trial, or on a dismissal thereof * * Upon the presentation of such amended undertaking on appeal, the justices of this court approved the same without prejudice to the right of respondent to move to vacate such approval, or to proceed with his pending motion to dismiss. The approval of the amended undertaking, without prejudice as aforesaid, was made pursuant to that part of sec. 9385.77, N.C.L. 1931-1941 Supp., reading as follows: “No appeal shah be dismissed for insufficiency of the undertaking thereon; [54] provided, that a good and sufficient undertaking approved by the justices of the supreme court, or a majority thereof, be filed in the supreme court before the hearing upon motion to dismiss the appeal; * * Appellants point out that their notice of appeal specifically indicated that they appealed both from the judgment and from the order denying a new trial and contend that the failure of the first undertaking to refer to the appeal from the order created a situation contemplated by the above-quoted portion of sec. 9385.77. Respondents contend that the appeal from the judgment and the appeal from the order are two separate and distinct appeals and that the sureties on the first undertaking only obligated themselves in the event of an affirmance of the judgment or in the event of a dismissal of the appeal from the judgment; that they did not obligate themselves upon the affirmance of the order denying new trial or upon a dismissal of the appeal therefrom and that the first undertaking on such appeal was not merely insufficient, under the wording of the statute, but was totally lacking. Appellants refer to the liberality expressed in other parts of sec. 9385.77, to the policy expressed that no appeal shall be dismissed for any defect or informality in the appellate proceedings until the appellant has been given an opportunity to amend or correct such defect and to the effect that the appeal shall not be dismissed for any irregularity not affecting the jurisdiction, where such defect or irregularity can be cured by amendment. Appellants also refer to the often expressed policy of this court to dispose of appealed cases on the merits whenever that can lawfully be done. To this policy we have always adhered and still adhere, and the present case, involving as it does important range rights and stockwatering rights of the respective parties, presents an instance in which the court would much prefer to give effect to this liberal policy if it could be lawfully done. [55] However, the decisions of this court as well as decisions of the courts of California, Idaho, Montana, North Dakota and other states require such dismissal. In the absence of the filing of the undertaking within the statutory time, the appeal is not “effectual for any purpose.” N.C.L. sec. 9385.66. This court has repeatedly held that the filing of the undertaking is jurisdictional. The first undertaking filed by appellants was no undertaking on the appeal from the order denying new trial. Magee v. Whitacre, 60 Nev. 202, 96 P.2d 201 (appearing in Pacific Reporter under its original title of Magee v. Lothrop), 106 P.2d 751. Section 9385.77 merely authorizes the filing of a new bond to cure an insufficiency. It does not authorize the filing of a bond after the expiration of the statutory time where none has been filed. Twilegar v. Stevens, 49 Nev. 273, 244 P. 896, 897. In that case, as in the present one, appellant contended that this court had held contra in Shute v. Big Meadow Inv. Co., 41 Nev. 361, 170 P. 1049, but the court said that the question had neither been raised nor determined in the Shute case. The court further said: “The statute does not say that when there is a failure to file an undertaking relief may be had in the manner stated.” See also Jasper v. Jewkes, 50 Nev. 153, 254 P. 698, and Lippert v. Lippert, 51 Nev. 370, 277 P. 1. Appellants have cited no cases from this or other jurisdictions, holding that under similar conditions, and under similar statutes, the appellants have been permitted to file a new bond and thus perfect their appeal. It is true that appellants have referred us to several cases in which the court, in dismissing the appeal, remarked that the appellant had not seen fit to take advantage of the remedial statute, similar to our sec. 9385.77, and intimated that the court would in such event have accepted the new bond and refused to dismiss the appeal. In each case, not only was this by way of dictum, but the question as [56] to whether the new bond supplied such “insufficiency” or cured such “defect” as was contemplated by the particular statute, or whether it attempted to supply an absolute lack of a bond filed within the statutory period, was neither argued nor determined. Judd v. Ball, 58 Nev. 404, 73 P.2d 830, 82 P.2d 353, relied on by appellants is so lacking in facts as to the nature of the “insufficiency” in the bond there appearing that it is of little assistance. Counsel for respondent in that case conceded that the new bond, filed under the statute, supplied the “insufficiency,” and it was therefore accepted. As the Twilegar case said of the Shute case, we must say of Judd v. Ball that the point was neither submitted nor determined. All cases in which the precise point has been considered support the motion to dismiss. See particularly Spokane Cattle Loan Co. v. Crane Creek Sheep Co., 36 Idaho 786, 213 P. 699, and Little v. Thatcher, 151 Cal. 558, 91 P. 321. Accordingly, the motion to dismiss the appeal from the order denying the motion of appellants for a new trial must be granted, and such appeal is hereby dismissed.