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4 Idaho 488

Balfour v. Eves

Idaho Supreme Court

Decided November 20, 1895

Idaho Supreme Court · decided 1895-11-20

Where a mortgage conflicts with the terms of the note, or is uncertain, the note will govern. (Bank of San Luis Obispo v. Johnson, 53 Cal. 99; 2 Jones on Mortgages, 3ded., 1179.) The term “period of days” in the mortgage is too indefinite and uncertain. The action was undoubtedly premature, and all that plaintiffs are entitled to is judgment for the sale of so much of the land as will settle the interest not mentioned.

Cited by 1 later decisions — most recently October 1953

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1895-11-20

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SULLIVAN, J.

¶1This is an appeal from the judgment, and from an order made after judgment refusing to open the default, entered against the defendants, and refusing to vacate and set aside the judgment.

¶2The respondents moved to dismiss the appeal from said order on the ground that said appeal was not taken in time. The order refusing to set aside the default and judgment were made and entered on the eighth day of November, 1894, and the appeal taken on the twenty-seventh day of June, 1895. This being an order made after final judgment, the appeal, to be effectual, must have been taken within sixty days after the order was made, and entered on the minutes of the court, or filed with *490the clerk. (See Rev. Stats., sec. 4807.) As that was not done, the appeal from the order was not taken in time, and must be dismissed.

¶3This leaves for consideration, the appeal from the judgment, which is here on the judgment-roll alone; and, as we find no error on the face of the record, the judgment of the court below must be affirmed; and it is so ordered, with costs in favor of respondents.

Morgan, C. J., and Huston, J., concur.
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