Farnworth v. Viet

225 P. 1023, 39 Idaho 40, 1924 Ida. LEXIS 4

Opinion

McCARTHY, C. J.

Respondent moves to dismiss the appeal upon the ground among others that no undertaking on appeal has been given as required by C. S., secs. 7153 and 7154. The point is that one of the two sureties was a married woman and not competent to sign the bond.

The action was brought against appellant and one Tauber to recover the purchase price of certain hogs. Judgment went against both. Yiet appealed;'Tauber did not. Josephine Tauber, one of the two sureties, is the wife of the co-defendant. Whether she would have been a competent surety on her husband’s bond on appeal on the theory that the community property was liable for the debt, may be open to some question, but it is certain that she was not competent to act as surety on Yiet’s appeal bond. (Bank oCommerce v. Baldwin, 14 Ida. 75, 93 Pac. 504, 17 L. R. A., N. S., 767; Meier & Frank Co. v. Bruce, 30 Ida. 732, 168 Pac. 5; Overland Nat. Bank v. Halveston, 33 Ida. 489, 196 Pac. 217.)

The fact that the surety on an appeal bond is incompetent is ground for dismissing an appeal. (Paxton v. Liveley, 48 Or. 135, 85 Pac. 501.) If the statute requires two sureties an appeal will be dismissed where there is only one. (Brinckner v. Sporleider, 3 Okl. 561, 41 Pac. 726.) In such case the bond is void and not merely defective.

The motion to dismiss the appeal is granted, with costs to respondent.

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