Wall v. Woods , 40 Idaho 522 ( 1925 )

Appellant filed a bond in the form of a supersedeas and appeal bond but insufficient by $46.25 to be double the amount of the judgment plus $300. Respondent moves to dismiss the appeal on the ground that the bond is void. Appellant argues that since no objection to the amount was made within twenty days of the time the bond was given such objection was waived.

Meservy v. Idaho Irr. Co., 35 Idaho 257, 205 P. 559, held that a supersedeas and appeal bond might be contained in one instrument and that this did not conflict with Weiser RiverFruit Assn. v. Feltham, 31 Idaho 633, 175 P. 583, which held that a supersedeas bond would not take the place of an appeal bond. In the instant case no point is made that the bond does not conform to both except in amount, and being over $300, it is sufficient as an appeal bond (Wilson v. Peck, 33 Idaho 722,197 P. 1026; Kelley v. Sakai, 70 Wn. 699, 127 P. 107;Harris v. Higden (Tex. Civ.), 41 S.W. 412), which holding is not in conflict with Libby v. Spokane Valley etc. Co., 15 Idaho 467,98 P. 715, which stated: "In the case at bar the bond does not contain the language of the statute required in an undertaking on appeal, . . . . "

It is therefore ordered that the motion to dismiss the appeal be denied.

William A. Lee, C.J., Wm. E. Lee and Budge, JJ., concur.