
    COLEMAN, Respondent, v. PERRY et al, Appellants.
    [No. 1506.]
    
      On Motion to Dismiss Appeals.
    
    [Decided May 31, 1900.]
    
      Appeal — Undertaking on Appeal — Sufficiency—Dismissal of Appeal.
    
    1. Where appellant appeals from a judgment and from an order denying a new trial, an appeal bond conditioned that it shall be void if appellant pays all damages awarded against him on such appeals, without alternative conditions referring to each separately, is insufficient, as the sureties assume no liability unless both appeals are decided against Appellant.
    2. Under Code of Civil Procedure, Sec. 1740, providing that no appeal shallbe dismissed for insufficiency of the undertaking, if a sufficient one, approved by a justice of the Supreme Court, is filed before the motion to dismiss the appeal is heard, where a sufficient undertaking is so filed a motion to dismiss for insufficiency of the bond must be denied.
    
      Appeal from District Court, Silver Bow County/ John Lindsay, Judge.
    
    Action by Elizabeth Coleman against Oliver N. Perry and others. From a judgment for plaintiff, and an order denying
    his motion for a new trial, defendant appeals.
    Motion to dismiss appeal denied.
    
      Messrs. Hamilton dc Thresher, for Appellants.
    
      Mr. Cuy L. Reed, Mr. Peter • Breen, and Mr. Robert McBride, for Respondent.
   PER CURIAM.

— This cause was brought into this court upon appeals from the judgment, and an order denying defendant’s motion for a new trial. A motion has been submitted by Respondent to dismiss the appeals on the ground that the undertaking is void for ambiguity. This instrument is identical in form with that considered in Baker v. Butte City Water Co., 24 Mont. 31, 113, 60 Pac. 488, 817. It was not held in that case, as respondent contends, that such an undertaking is void, but only that it is merely insufficient or imperfect, in that, though it refers to both appeals, it does not contain alternative conditions referring to each separately, so as to bind the sureties to meet all the contingencies which may arise in the disposition of the case by this court. The appellants having filed with the clerk of this court a good and sufficient undertaking, approved by the chief justice, before the motion to dismiss was heard, the motion must be denied. (Code of Civil Procedure, Sec. 1740; Woodman v. Calkins, 12 Mont. 456, 31 Pac. 63, cited in Greeks. Bozeman Waterworks Co., 22 Mont. 327, 56 Pac. 362.)

Denied.

Mr. Justice Hunt, being absent, takes no part in the foregoing decision.  