Van Sicklin v. Mayfield Land Etc. Co. , 41 Idaho 673 ( 1925 )

In an action in which E.A. Van Sicklin and W.E. Adams were plaintiffs and Mayfield Land Livestock Company, the Boise Livestock Loan Company of Chicago, W.C. White, County Assessor, Earl R. Gilbreath, Treasurer and Tax Collector, Robert B. Stocker, J.W. Brown, D.R. Kendall, the County of Lemhi and Wallace W. Slavin were defendants, the court made and entered a decree in which Van Sicklin and Adams were granted certain relief against Lemhi county and its taxing officers and in which Lemhi county was awarded certain relief against the Boise Livestock Loan Company of Chicago. Boise Livestock Loan Company of Chicago filed a notice of appeal which was directed to all the other defendants and Van Sicklin and Adams. An undertaking on appeal and supersedeas, in one instrument, was filed; it recites that the appeal is from that portion of the decree granting relief to Lemhi county against appellant, and is in the sum of $2,100.

The respondents Van Sicklin and Adams move to dismiss the appeal on three principal grounds. It is contended that the undertaking is not sufficient in amount for both an appeal and a supersedeas. From the decree it is not possible to determine the amount of the relief awarded by the decree against appellant, and we do not know why the amount of the bond was fixed at $2,100. Conceding, however, that the undertaking is insufficient in amount to cover both the appeal andsupersedeas, it is sufficient as an appeal bond. (Wall v.Woods, 40 Idaho 522, 234 P. 145.) In so far as the conditions of the undertaking are concerned, it is substantially the same as the undertaking construed by this court in Meservy v. IdahoIrr. Co., Ltd., 35 Idaho 257, 205 P. 559, and is sufficient.

The surety acknowledges itself bound " . . . . to the said defendants, Lemhi county, Idaho, and W.C. White, county assessor of Lemhi county, Idaho, and to the successor and successors in office of the said W.C. White to the effect . . . ." Since the undertaking runs to the county of Lemhi and its revenue officers and does not mention Van Sicklin and Adams, the latter argue that the bond is void and that this court is without jurisdiction to entertain the appeal. C. S., sec. 7154, provides that the undertaking on appeal must be executed on the part of the appellant to the effect that be will pay all damages and costs which may be awarded against him on the appeal or on a dismissal thereof, but it does not require that the undertaking contain the name of the adverse party whom the bond indemnifies. (Downing v. Rademacher, 136 Cal. 673,69 P. 415.) Since the law does not require that the undertaking specify the names of the parties whom it indemnifies, the mere omission of the names of Van Sicklin and Adams does not invalidate the undertaking. No insufficiency of the undertaking was pointed out, as provided by C. S., sec. 7154, and a new appeal bond was filed in this court on the service of the motion to dismiss. The motion is denied.

During 1920 and 1921 the Mayfield Company owned certain lands and migratory livestock. Taxes on such livestock for those years were entered on the tax records of the county against certain lands of the Mayfield Company. The taxes became delinquent. Appellant was a mortgagee of the livestock, which was sold and the proceeds applied on the mortgage indebtedness. Van Sicklin and Adams held and foreclosed a mortgage on certain lands of the Mayfield Company. The purpose of this action was to have such land relieved from the lien of the tax on the livestock. The decree accomplishes this purpose, and directs that, in the event such tax cannot be realized from the livestock, appellant is liable therefor and that it be collected from appellant. Neither Lemhi county nor any of its officers have appealed; nor do they contest the appeal.

Although it would seem that appellant is not directly affected by the decision of the trial court in any other respect than that it was held conditionally liable for the taxes on the livestock, it has specified numerous errors, attacking all the material findings and conclusions on which the decree rests. In view of our disposition of this appeal, since neither Lemhi county nor its taxing officers have appealed from the decree and have not complained of the action of the trial court in relieving the land of the lien of the taxes on the livestock, the county alone being primarily interested, we shall not enter on a discussion of the validity of the decree in this respect, although urged to do so byamici curiae.

Appellant contends that the question, in its final analysis, is whether a mortgagee of migratory livestock is chargeable for taxes assessed against such mortgaged property, and that it must be determined solely from the provisions of the statute. This question is not before us. No valid judgment has been made and entered against appellant for the payment of any taxes on the migratory livestock, and even though a judgment for a definite sum had been made and entered in this action in favor of the county and against appellant it would have been erroneous. The county and appellant were codefendants. The record discloses that the county and its officers and appellant appeared and demurred to the complaint of Van Sicklin and Adams. The demurrers were overruled. Appellant answered and denied the material allegations of the complaint. The record contains no answer or cross-complaint of or in behalf of the county or of any of its officers. No pleadings or issues of any kind were framed by and between these two codefendants; the county asked for no relief against appellant and, therefore, no relief should have been awarded it as against appellant. (Gile v. Wood, 32 Idaho 752, 188 P. 36; Miller v. Prout,33 Idaho 709, 197 P. 1023.) Under the circumstances the trial court at least erred in directing that the tax on the livestock be recovered from appellant, in the event it could not be realized from the livestock.

The decree is modified by striking that portion authorizing the recovery by the county from appellant of any taxes assessed against the migratory livestock. As modified, the decree is affirmed. No costs were allowed by the trial court and we allow none.

William A. Lee, C.J., and Budge, Givens and Taylor, JJ., concur.

Petition for rehearing denied.