on appeal had been filed since the notice of appeal was served. The motion was overruled and denied, and from the order of the district court the plaintiff appeals to this court.

It is contended on behalf of the plaintiff that the appeal was not taken in the manner required by law, and in support of this proposition we are referred to Shissler v. Crooks, 1 Idaho, 369; People v. Hunt, Id. 371; Clark v. Lowenberg, Id. 654. These decisions were made upon the statute which provides for "appeals in general," or perhaps, more correctly speaking, for appeals from the district to the supreme court. This statute differs essentially from the one we are now called upon to consider and construe, and hence the cases cited, while doubtless correct upon the questions there presented, have no application to the case at bar.

By section 665 of the Code of Civil Procedure it is provided that "any party dissatisfied with a judgment rendered in a civil action in a probate or justice's court may appeal therefrom to the district court of the county at any time within thirty days after the rendition of the judgment. The appeal is taken by filing a notice of appeal with the justice or judge, and serving a copy on the adverse party." Section 668 provides in substance that upon receiving the notice of appeal, and on payment of the fees of the judge or justice, and filing an undertaking as required in the next section, and after settlement of the statement, if any, the judge or justice must, within five days, transmit to the clerk of the district court, with the papers in the case, a transcript of the docket entries. By section 669 it is further provided that "an appeal from a justice's or probate court is not effectual for any purpose, unless an undertaking be filed, with two or more sureties," etc.

It may here be observed that this statute, unaided by any other, prescribes the mode or manner of appeal from judgments rendered in probate and justice's courts. Three things are made indispensable: the filing of the notice of appeal, the service of a copy of the same on the adverse party, and the filing of an undertaking; and all these things must be done within 30 days from the rendition of the judgment, and are jurisdictional; but the statute does not prescribe the order in which these several steps must be taken. Here the notice of appeal and undertaking were filed four days after the judgment was rendered. This did not effectuate the appeal until the notice was served as required by law. The notice was served nine days after the filing, and it will be seen that all these acts were done within the statutory time, and we cannot think that the mere order in which they were done is material. It has been, in effect, so held under the statute from which ours was copied. Coker v. Superior Ct., 58 Cal. 177; Hall v. Superior Ct., 8 Pac. Rep. 6.

The plaintiff insists that by reason of the filing of the undertaking on appeal prior to the service of notice that he was denied his statutory right of objecting to the sufficiency of the sureties. It is true v.10p.no.1-3

the statute provides that the adverse party may except to the sufficiency of the sureties within five days after the filing of the undertaking, but we are inclined to believe that this statute is only direct-. ory, and that an insufficient undertaking may be objected to when a substantial defect is ascertained, or that the defect or irregularity may be waived. Rabe v. Hamilton, 15 Cal. 32. It will be seen that the statute does not require notice to be given of the filing of the undertaking; service of notice of appeal is the requirement, and this need not necessarily be done before the undertaking is filed. The statute does not require it. In construing a statute we must look to the language used, and endeavor, if possible, to ascertain the intention of the legislature; and applying this rule to the statute in question we are unable to see that anything more was intended than that the appeal should be perfected within 30 days from the rendition of the judgment.

It may here be observed that no showing was tendered in the court below that on account of accident or mistake the plaintiff had been deprived of the right to object to the sufficiency of the undertaking. No claim was made that the undertaking was for any reason insufficient, or that any injury would likely result; but the plaintiff rested its application on the cold question of jurisdiction. Whether, if it had chosen to pursue the other course suggested, it would have been availing, we do not here decide. On this question we refer, however, to the following authorities: Coulter v. Stark, 7 Cal. 244; Cunningham v. Hopkins, 8 Cal. 33; Rabe v. Hamilton, 15 Cal. 31; Stark v. Barrett, Id. 364; Hayne, New Trials, par. 214, p. 649; section 668, Code Civil Proc.

After as careful consideration of the question presented by this appeal as we have been able to give, we are satisfied that the ruling of the court below was correct. The judgment and order are therefore affirmed.

HAYS, C. J., and BUCK, J., concurring.

(2 Idaho [Hasb.] 199)

GAFFNEY V. HOYT and others.

Filed March 3, 1886.

1. PARTNERSHIP EVIDENCE TO PROVE-REPUTATION.

Evidence of common report should only be admitted to prove partnership, in connection with the further evidence that such report was known to the parties sought to be charged.

2. JUDGMENT-MODIFICATION-STRIKING OUT NAME OF ONE DEFENDANT.

The judge of the district court may, upon motion for new trial on the ground of insufficient evidence to sustain the verdict, modify the judgment by striking out the name of one of the parties defendant where several defendants are severally joined.

Appeal from Alturas county, Second judicial district.

Kingsbury & McGowan, for appellant.

Angel & Sullivan, for respondents.

BUCK, J. About July, 1883, M. L. Hoyt & Co., doing business as bankers at Shoshone, Alturas county, Idaho territory, received on deposit of the plaintiff, Bartley Gaffney, $914.20. Shortly after, to-wit, August 3, 1883, the said company sold their said business to Ross Cartee, and gave notice to their depositors to "look to said Cartee for the payment of any money due them from said bank, from the date of said notice." That afterwards, the said Cartee having failed, the plaintiff demanded payment of the said firm of Hoyt & Co. of his said deposit, which demand being refused he commenced this action for the amount claimed to be due. The amended complaint was filed July 11, 1884. It alleged the partnership of defendants, the deposit of the money, the demand of payment, and the refusal to pay; and demanded judgment for the amount due, with costs. The defendants filed their answer August 1, 1884, and interpose a general denial. Neither pleading is verified. The cause was tried by a jury, and they returned a verdict for plaintiffs of $1,027.69, and judgment was entered thereon, against all the defendants, on the third day of July, 1885. The defendants gave notice of motion to set aside the verdict and judgment, and for a new trial, on the ground of accident and surprise, insufficiency of the evidence to sustain the verdict, newly-discovered evidence, and because the verdict was contrary to

law. On the tenth day of October, 1885, the court granted the motion to set aside the verdict as to Wurtelle, overruled the motion as to the other defendants, and reformed the judgment. From the order overruling the motion for a new trial, and from the modified judgment, the defendants appeal, and incorporate a bill of exceptions. to the order overruling the motion for a new trial, and a statement, into the record. In the specifications of errors the appellants assign

as error:

"First, insufficiency of the evidence to prove that the defendants were partners; second, that the evidence was sufficient to establish that the plaintiff consented to change his deposit account from Hoyt & Co. to Cartee; third, that the court erred in admitting, against the objection of defendants, testimony of common report as to the copartnership of defendants; fourth, that the order reforming the judgment is against law."

In the brief of appellant 15 assignments of error are set out; but, as no errors will be considered on appeal that were not set out in the specifications of error in the statement of the case and in the bill of exceptions, we shall consider only those above enumerated.

The first and third assignments of error, to-wit, that the evidence was insufficient to prove that the defendants were partners, and error in admitting evidence of common report to prove partnership, may be considered together. The rule seems to be established, as the result of numerous adjudicated cases, that common report can only be admitted to prove the partnership of the different members of a firm when it is accompanied with evidence that such report was known to

the party sought to be charged. 5 Wait, Act. & Def. 114, and numerous cases there cited; Bowen v. Rutherford, 60 Ill. 41; S. C. 14 Amer. Rep. 25; Brown v. Crandall, 11 Conn. 92; Halliday v. McDougall, 20 Wend. 81.

In the case at bar, the admission of Hoyt in his deposition introduced in evidence, and the admission of Wallace as testified to by Mr. Angel, were sufficient to justify the verdict of the jury as to their partnership. Parties plaintiff are not held to the same degree of strictness in proving the partnership of defendants as they are in proving their own partnership when they bring the action as partners. As to defendants Dodridge and Wurtelle there seems to have been no evidence of their connection with the firm except common report, and indeed Wurtelle seems to have been unconnected with the firm even by common report. While this evidence was competent, yet, without the additional evidence that the report was known to Dodridge and Wurtelle, we think it was not sufficient to warrant a judgment against them.

Upon the hearing of the motion for a new trial the court set aside the verdict and judgment as to Wurtelle, and overruled it as to the other defendants. It is insisted by appellants that it was error to modify the judgment by striking out one of the parties. The defendants, by their answer, put in a general denial, and thus deny the partnership, and also their several liability. They are in no way jointly interested in their defense. Upon their motion for a new trial they severally insist that the evidence is insufficient to establish either their joint liability as partners, or their several liability as individuals. The court, in its discretion, sustained the motion as to defendant Wurtelle, and overruled it as to the others. Section 352, Code Civil Proc., provides "that in actions against several defendants the court may, in its discretion, render judgment against one or more of them." It is claimed upon the argument that thus diminishing the number of defendants increases the burden of those remaining; but defend ants themselves deny joint as well as several liability. If they were not partners with defendant Hoyt, they should not be held. The burden should rest upon him and his partners. If any of the defendants were likely to be prejudiced through the want of evidence on the part of plaintiffs to prove who all of the partners were, the defendants were in a position to furnish the evidence as to the actual members of the firm, and thus distribute the burden where it rightfully belongs. We think the court below had authority to modify the judgment. Matheson's Adm'r v. Grant's Adm'r, 2 How. 279.

The next alleged error is the overruling of the motion for a new trial on the ground of newly-discovered evidence. Evidence was admitted by defendants tending to show that plaintiff drew two checks. upon Mr. Cartee after Hoyt & Co. had transferred their interest in the bank, and it is claimed that the drawing of said checks was evidence showing that the plaintiff accepted said Cartee for said depos

its, and thus released Hoyt & Co. The plaintiff, in rebuttal, denied the signing of said checks, which evidence defendants claim was surprise to them, and they produced the affidavit of said Cartee, on the motion for new trial, to the effect that he (Cartee) would testify that plaintiff, Gaffney, actually signed said checks. The answer contains no allegation that plaintiff accepted said Cartee, and released Hoyt & Co. from said deposit. The answer contains a simple denial of the partnership, the deposit, the refusal to pay, and the indebtedness. These constitute the issues. Evidence of release of Hoyt & Co. and acceptance of Cartee would be entirely outside of the issues, and therefore irrelevant and inadmissible. Clearly it was not error to refuse a new trial upon the discovery of evidence entirely irrelevant to the issues made by the pleadings.

An inspection of the evidence shows that there was no testimony of the liability of either Wurtelle or Dodridge, except that of common report, which was not of itself sufficient to justify the verdict against them. Ah Lep v. Gong Choy, 9 Pac. Rep. 483.

We think the judgment should be further modified by striking therefrom the name of Dodridge as defendant, and affirmed as to defendants Hoyt and Wallace, and that the cause be remanded for a modification in the court below in accordance herewith.

HAYS, C. J., and BRODERICK, J., concurring.

(2 Idaho [Hasb.] 204)

HOUSER and others v. AUSTIN and others.

Filed March 3, 1886.

1. TRIAL-JURY-SUBMISSION OF ISSUES IN EQUITY CASE.

In equity it is within the discretion of the court to submit both legal and equitable issues to the jury at the same time.

2. CONTRACT-MISTAKE-REFORMATION.

To authorize the reformation of a written contract on the ground of mistake, the evidence must leave no reasonable doubt in the mind of the court as to the mistake.

3. SAME-MUTUAL MISTAKE.

The mistake must be mutual, and it must appear that both have done what neither intended.

4. EVIDENCE-PRESUMPTION FROM KEEPING WITNESS AWAY FROM COURT. Where a person is proved to have caused a witness to absent himself from the trial, the presumption arises that the evidence of the witness, if given, would be against his interest.

Appeal from Second judicial district, Alturas county.

Huston & Gray and R. Z. Johnson, (John T. Morgan, of counsel,) for appellants.

Lyttleton Price and Arthur Brown, for respondents.

BUCK, J. On the fourth day of March, 1884, the plaintiffs filed their complaint herein, alleging that they were the owners as tenants in common of certain mining ground in Alturas county, Idaho territory, known as the "Elkhorn Lode;" that on the third day of October,