Berbner v. Western Pine Manufacturing Company, Ltd.

• Court: Idaho Supreme Court
• Writing for the Court: HOLDEN, J.
• Citation: Berbner v. Western Pine Manufacturing Company, Ltd., 23 P.2d 723, 53 Idaho 314 (Idaho 1933)
• Decision Date: 22 June 1933
• Docket Number: 5951
• Parties: JAMES M. BERBNER, Respondent, v. WESTERN PINE MANUFACTURING COMPANY, LIMITED, a Corporation, Appellant

23 P.2d 723

53 Idaho 314

JAMES M. BERBNER, Respondent, v. WESTERN PINE MANUFACTURING COMPANY, LIMITED, a Corporation, Appellant

No. 5951

Supreme Court of Idaho

June 22, 1933

APPEAL AND ERROR - UNDERTAKING ON APPEAL - FAILURE TO FILE - DISMISSAL.

Where undertaking on appeal was not filed within five days after notice of appeal, and undertaking was not waived, and there was no deposit of money, supreme court must dismiss appeal statutory requirements being mandatory (I. C. A., sec 11-202).

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Bert A. Reed, Judge.

Motion to dismiss appeal. Appeal dismissed.

Appeal dismissed. Costs to respondent.

Whitla & Knudson, for Appellant.

William D. Keeton, for Respondent.

HOLDEN J. Budge, C. J., and Givens, Morgan and Wernette, JJ., concur.

OPINION

HOLDEN, J.

Respondent has moved to dismiss the appeal of the Western Pine Manufacturing Company upon the ground that the undertaking on appeal was not filed within five days after the service of the notice of appeal. The notice of appeal was served July 26, 1932, and the undertaking on appeal was filed August 2 1932. Section 11-202, I. C. A., provides that an "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 clerk, . . . . or the undertaking be waived by the adverse party in writing." The undertaking was not waived and there was no deposit of money. The requirements of the foregoing statute are mandatory and jurisdictional, and failure of compliance therewith gives this court no jurisdiction to entertain the appeal,...