Biwer v. Van Dorn

• Decision Date: 31 March 1919
• Citation: 179 P. 953,32 Idaho 213
• Parties: EDWARD T. BIWER, Respondent, v. CHARLES VAN DORN, Constable, and MELVIN BRYANT and H. H. BRYANT, Copartners, Doing Business Under the Firm Name of FORD MOTOR SUPPLY CO., Appellants
• Court: Idaho Supreme Court

179 P. 953

32 Idaho 213

EDWARD T. BIWER, Respondent, v. CHARLES VAN DORN, Constable, and MELVIN BRYANT and H. H. BRYANT, Copartners, Doing Business Under the Firm Name of FORD MOTOR SUPPLY CO., Appellants

Supreme Court of Idaho

March 31, 1919

APPEAL-ABSENCE OF CERTIFICATE TO TRANSCRIPT-DISMISSAL.

1. Where the transcript on appeal from an order or contested motion does not contain a certificate of the trial judge clerk or attorneys, that the papers therein contained constitute all the records, papers and files used or considered by the judge making the order on the hearing of the motion, as required by C. L., sec. 4821, and Rule 24 of this court, the appeal will be dismissed.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Carl A. Davis, Judge.

Action for damages. Order issued enjoining the selling of an automobile claimed to be exempt from execution. Appeal from order. Dismissed.

Appeal dismissed. Costs awarded to respondent.

J. T Pence, for Appellants.

J. P Pope and Ross W. Bates, for Respondent.

Counsel cite no authorities on point decided.

BUDGE J. Morgan, C. J., and Rice, J., concur.

OPINION

BUDGE, J.

This is an action to recover damages alleged to have been suffered by reason of the seizure and retention by appellants, under a writ of attachment, of an automobile owned by respondent, and to restrain appellants from selling or disposing of it or in any way interfering with respondent's possession thereof.

Upon a motion made therefor, the court entered an order restraining appellants as prayed, until the final hearing of said cause upon the merits. This appeal is from the order granting the injunction.

The transcript on appeal does not contain a certificate either by the trial judge, clerk or attorneys, that the papers therein contained constitute all of the records, papers and files used or considered by the trial judge upon the hearing of the motion for the injunction, as required by C. L., sec. 4821, and Rule 24 of this court. It is the settled law in this jurisdiction that where the transcript does not contain such certificate, the appeal will be dismissed. (Walsh v. Niess, 30 Idaho 325, 164 P. 528, where the previous authorities are collected; Glenn v. Aultman & Taylor M. Co., 30 Idaho 719, 167 P. 1163; Glenn v. Aultman & Taylor M. Co., 30 Idaho 727, 167 P. 1163.)

The appeal is dismissed. Costs are awarded to respondent.

Morgan,...