Anderson v. Knott

• Decision Date: 01 January 1876
• Citation: 1 Idaho 626
• Parties: David Anderson Et Al., Respondents, v. W. B. Knott, Appellant.
• Court: Idaho Supreme Court

1 Idaho 626

David Anderson Et Al., Respondents, v. W. B. Knott, Appellant.

Supreme Court of Idaho

January 1, 1876

PRACTICE-APPEAL-NOTICE OF APPEAL-SERVICE-JURISDICTION.- In order to give this court jurisdiction of a case, on an appeal, it is necessary that the transcript should show that the notice of appeal has been served on the adverse party. Unless the record shows such service the appeal will be dismissed.

APPEAL-REGULARITY OF PROCEEDINGS MUST APPEAR-PRESUMPTIONS.-The regularity of the proceedings by which an appeal is taken must be shown affirmatively. Nothing will be presumed in favor of the same.

UNDERTAKING ON APPEAL.-The undertaking on an appeal must be filed within five days after the service of the notice of appeal, unless a deposit of money be made instead, or the undertaking be waived by the adverse party, in writing.

APPEAL from the Second Judicial District, Owyhee County. Motion to dismiss the appeal.

R. Z Johnson and H. E. Prickett, for the Motion. Brumback &amp Cahalan, contra.

CLARK J.,

delivered the opinion.

HOLLISTER, C. J., concurred.

In this case the respondents move to dismiss the appeal, on the ground that no undertaking was filed within five days after service of the notice of appeal. The notice of appeal was filed on the thirty-first day of July, 1875. On the first day of September, 1875, the undertaking for appeal was filed. The notice of appeal does not show that it had been served upon the respondents or their attorneys, or either of them.

The transcript in this case does not show that the notice of appeal had been served upon any person or persons whatever hence we conclude that service of the same had not been made. That party moving for an appeal must show affirmatively that he has complied with the law relative to appeals in order to give this court jurisdiction. Nothing can be presumed or inferred in his favor. Section 438 of the Civil Practice Act reads as follows, to wit: "The appeal shall be made by filing with the clerk of the court, with whom the judgment or order appealed

from is entered, a notice stating the appeal from the same, or some specific part thereof, and serving a copy of the notice upon the adverse party or his attorney. The order of service is immaterial, but the appeal is ineffectual for any purpose unless, within five days after service of the notice of appeal, an undertaking be filed or a deposit of money be made with the...