The Coeur d'Alene press. (Coeur d'Alene, Idaho) 1892-1907, 1904-12-24
DECIDED AGAINST COUNTY
APPEALS OF THE RAILWAYS
Supreme Court Holds that District Judge
Erred in Not Permitting Appellants to
File Undertakings to Replace Those
Claimed to be Insufficient.

Great Northern Railway company,
appellant, VS. Kootenai county. The +
railway company appealed from an
order Of the board of county commits f
sioners and its appeal was dismissed +
by the district court. In the opinion .
written by Justice Ailshie and con- (
CURED in by Chief Justice Sullivan /
and Justice Stockslager, the supreme
court holds that IAN appeal from an /
order Of board Of county commits /
sioners is perfected by serving upon
the clerk Of the board a notice Of ap
peal and the giving and filing an
undertaking is not iurisdictional and
the appeal should not be dismissed
for failure to give an undertaking
in the absence Of an order of the dis
trict Judge requiring such an under
taking.
The statement Of facts contained in
the opinion shows that the county
commissioners, in regular meeting,
September Is, 1908, levied a general
road tax upon all taxable property in
the county for the year 1908, and at
the same time made a levy for general
bridge purposes and general school
purposes.
The Great Northern Railway com
pany which owned taxable property
in the county and was affected by the
levy, served notice Of appeal upon
the clerk of the board on October ,,
1908, and later served copy Of the
notice upon the chairman of the
board Of county commissioners. On
October "A, 1908, the railway com
panv fled with the clerk Of the board
an undertaking on appeal in the sum
of $500 and on the same day filed in
the district court of kOotenai county
a complaint on appeal, setting forth
its grounds Of appeal ard served the
same upon the prosecuting attorney
of the county. On October 20, 1908,
the cause was reached on the district
court calendar and the county at
torney asked for time in which to
answer the complaint.
Nothing further was done with the
case in court until February 20,
1901, but in the meantime the at
torneys for the railway company and
the county carried on considerable
correspondence relative to the prep
aration Of a statement Of facts to be
submitted to the trial court upon
which the law Of the case should be
determined.
On February 20, 1904, the county,
through its attorneys, filed a motion
to dismiss the appeal. The motion
was based on the grounds that the
appeal vas not perfected within the
time required by statute; that the
undertaking or bond on appeal was
defective. insufficient and void in
that It did not comply with the
statutes and was not accompanied b
evidence showing that the surety
company mentioned was qualified h
transact business in Idaho and tha
no bond or undertaking on appea
mad been fled and approved by tn
clerk Of the board Of county commits
sioners or the probate judge o
kooteuai county, a. required by tn
statute.
Before hearing the motion Of tn
county 30 dismiss, the railway com
pauy asked leave, among other things
to make aud file such boud or under
taking on appeal as the court Nigh
direct
After hearing upon the motion t
dismiss and the condemnation b
the railway company, Judge Morgan
on April q, 1904, made and entere
an order sustaining the motion Of tn
county and dismissing the ap pea
From this judgment and order til
railway company appealed.
After reviewing the action in detail
the supreme court holds that ''aftC
the motion to dismiss has been tileC
and after the appellant moved II
court to tx the amount Of the unde
taking to be required, 1t was II
duty Of the court 10 make his ord'
requiring an undertaking suttcieI
to secure the payment of costs on Il
appeal and give the appellant an o.
portunity to make and fle sue
undertaking "
The judgment of the district cou
is reversed and the cause remand'
with directions TO the trial court
reinstate the appeal and permit Il
appellant to file such an undertaken
for security Of costs as the Judge
that court shall deem sufficient.
An opinion similar in all respec
TO that in the Great Northern ca
has been delivered by the suprer
court 10 the case Of the Kooten
Nnllev EHilmHv cnmnanY. anDellar