Miller v. Pine Mining Co. , 3 Idaho 603 ( 1893 )

MORGAN, J.

On the twenty-ninth day of April, 1892, a judgment was made and entered in the district court of Elmore •county, in favor of James Miller and against the Pine Mining Company, for the sum of $410 debt, and $384.45 costs. An appeal to the supreme court from said judgment was duly taken by the defendant, and a bond for the stay of execution was filed ■on the sixth day of June, 1892, with C. W. Moore and A. G-. Redway as sureties. The bond was in due form of law, and the sureties, in accordance with section 4934 of the Revised Statutes of Idaho of 1887, accompanied the bond with an affidavit that each of the sureties was a resident and freeholder of the state of Idaho, in the county of Ada; that each was worth the sum mentioned in the undertaking, over and above all just debts and liabilities, exclusive of property exempt from execution. These affidavits were sworn to before Frank T. Wyman, a notary public, as appears by a supplemental affidavit filed August 16, 1892; but the notary omitted to sign his name to the jurat, and the bond was placed on file in this form. On the 25th of July, 1892, the clerk of the court, at the request of the attorney for the plaintiff, issued an execution to collect said judgment, -and placed the same in the hands of the sheriff, •and said execution appears to be still in the hands of the sheriff, not having been returned to the clerk’s office. On the seventh •day of October, 1892, the attorney for the defendant filed in the said court a motion to quash said execution; and on said day the judge of the court ordered that all proceedings on. said writ be stayed until the thirty-first day of October, 1892, pending the hearing of said motion. On the first day of November, 1892, the court overruled the motion to quash said writ. From the order of the court overruling this motion this appeal is 'taken.

The affidavit which is usually attached to a bond contains the justification of the sureties, under section 4934. It is, however, no part of the undertaking; and the undertaking is complete ■without it, and in this case could be collected of the sureties, in •case the judgment of the court below had been affirmed by the supreme court. (2 Hayne on New Trial and Appeal, sec. 213.) The plaintiff could have excepted to the bond, because the affidavit of the sureties was not attached thereto in proper form, at any time within thirty days after the filing of the undertaking, as provided in section 4816, and the sureties would, have been compelled to justify in form according to law. The undertaking was not void, and the plaintiff could not so consider it. An appeal is perfected when the notice of appeal is. served and filed, and the proper undertaking is placed on file, according to law. Section 4814 provides that, whenever an appeal is perfected as provided in the foregoing sections of this chapter, it stays all further proceedings in the court, and releases from levy the property which has been levied upon under execution. This execution should not have been issued, as the proper bond was placed on file. The execution having been issued without authority of law, it should have been quashed upon motion of the defendant.

It is true that the case had béen taken from the jurisdiction of the district court by the appeal. The appeal includes all proceedings down to the perfecting of the appeal; but this, execution was issued by the clerk after the appeal had been perfected, and without authority of law. The court had authority to order it quashed, under the eighth subdivision of section 3862. The order overruling the motion to quash the execution is reversed, and the execution quashed. Costs awarded to defendant.

Huston, C. J., and Sullivan, J., concur.