Perkins v. Bridge

Citations

• 10 Idaho 189
• 77 P. 329
• 1904 Ida. LEXIS 18

Syllabus

<p>Undertaking on Appeal — Sureties—Justification—Failure of Sureties to Justify — New Undertaking — Filing Transcript— Kule of Court.</p> <p>1. Under the provisions of section 4838, Revised Statutes, an appeal may be taken within thirty days after the rendition of a judgment by a probate judge or justice of the peace, and the appeal is taken by filing a notice of appeal with the justice or judge and serving a copy on the adverse party.</p> <p>2. Under the provisions of section 4842, Revised Statutes, such appeal is ineffectual for any purpose unless an undertaking he filed with two or more sureties, and the adverse party may except to the sufficiency of the sureties within five days after the filing of the undertaking, and unless they, or other sureties, justify within five days thereafter, upon notice to the adverse party to the amount stated in their affidavits, the appeal must he regarded as if no undertaking had been given.</p> <p>3. In case such sureties fail to appear and justify, the undertaking signed by them is void, hut the appellant may file a new undertaking at any time prior to the expiration of the thirty day period given in which to take the appeal, hut notice of the filing of such undertaking ought to he given to the adverse party.</p> <p>4. The rule of the district court requiring the transcript on appeal in all eases appealed from a justice’s court to he filed in the district court within ten days after such appeal is perfected, and if not so filed the appeal may be dismissed on motion is not jurisdictional and should he applied with discretion.</p> <p>(Syllabus by the court.)</p>