Sucker State Drill Co. v. Brock

120 N.W. 757, 18 N.D. 598, 1909 N.D. LEXIS 22

• Court: North Dakota Supreme Court
• Decided: April 14, 1909
• Status: Published

Opinion

Fisk, J.

Appellant appealed both from a judgment and from an order denying its motion for a new tidal. But -one notice of appeal and one undertaking on such appeal were filed. The undertaking merely refers to 'omission to be supplied from, 120 N. W. 75, the appeal from the judgment, no mention being made of the appeal from the order. Respondents procured from this court an order to show cause, returnable on the first day of the present term, requiring appellant to show cause, if any there be, why its said appeal from the order should not be dismissed for its failure to give an undertaking as required by law. No appearance was made by apellant on the return day of the order to show cause, and no brief has been filed -by it in opposition to the granting of the relief asked by respondent’s counsel.

In the light of these facts we are not called upon to determine whether, under the provisions of section 7224, Revised Codes 1905, appellant might, on a proper showing of its omission through mistake or accident to furnish such undertaking, be permitted to file one at this time. The language of said section is very broad, and materially differs from the California section, under which the authorities cited by respondent’s counsel were decided. However this may be, we are confronted here with but the single question whether an appeal both from a judgment'and an order is effectual as to such order when the only undertaking furnished on the appeal refers exclusively to the judgment. We are agreed that a negative answer must be made to this question. Section 7208 is specific to the effect that, to render an appeal effectual for any purpose, an undertaking must be executed on the part of the appellant, etc. Section 940 of the Code of Civil Procedure of California contains substantially the same provision, and the supreme court of that state has repeatedly held that while a single undertaking will suffice on an appeal from a final judgment, and also from an, order denying a motion for a new trial, nevertheless, where the undertaking makes no reference to the appeal from the order denying a motion for a new trial, .such appeal will be dismissed. Duncan v. Times Mirror Co., 109 Cal. 602, 42 Pac. 147, and cases cited; Granger v. Robinson, 114 Cal. 631, 46 Pac. 604; Rhoads v. Gray (Cal.) 48 Pac. 971; Dodge v. Kimple, 121 Cal. 580, 54 Pac. 94.

(120 N. W. 757.)

The reasoning in the foregoing cases meets with our approval, and under such rule it is entirely clear that the appeal from the order is wholly ineffectual; hence respondents’ motion to dismiss the same is hereby granted, and such appeal dismissed, with $25 costs.

All concur, except Morgan, C. J., not participating on account of illness.