Bohannon Dredging Co. v. England

• Decision Date: 02 October 1917
• Citation: 168 P. 12,30 Idaho 721
• Parties: BOHANNON DREDGING COMPANY, a Corporation, et al., Appellants, v. JAMES G. ENGLAND et al., Respondents
• Court: Idaho Supreme Court

168 P. 12

30 Idaho 721

BOHANNON DREDGING COMPANY, a Corporation, et al., Appellants, v. JAMES G. ENGLAND et al., Respondents

Supreme Court of Idaho

October 2, 1917

APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. James G. Gwinn, Presiding Judge.

Action to determine priority of water rights. Motion to dismiss appeal. Sustained.

Appeal dismissed. Costs awarded to respondents.

Stevens & Clute, for Appellants, file no brief.

E. W Whitcomb, A. C. Cherry and J. H. Padgham, for Respondents.

Where the transcript fails to show compliance with the statute and all rules of court in taking an appeal, the same will be dismissed. (Flynn's Dig., p. 30.)

Where the transcript was not settled until after the motion for a new trial had been heard, the same will be stricken from the record on appeal. (Wood v. Tanner, 15 Idaho 689, 99 P. 123, 1053; Hattabaugh v. Vollmer, 5 Idaho 23, 46 P. 831.)

"When the transcript on appeal has not been filed with the clerk of this court within the time provided by the rules, and it does not appear that an extension of time has been granted, a motion to dismiss the appeal will be sustained." (California Consolidated Min. Co. v. Manley, 12 Idaho 221, 85 P. 919; First Nat. Bank v. Shaw, 24 Idaho 134, 132 P. 802; Fischer v. Davis, 24 Idaho 216, 133 P. 910.)

The praecipe must be filed within five days. (Sess. Laws 1911, p 375; Strand v. Crooked River Min. & Mill Co., 23 Idaho 577, 131 P. 5.)

RICE J. Budge, C. J., and Morgan, J., concur.

OPINION

RICE, J.

This is an appeal from the district court of the sixth judicial district for Lemhi county from an order of the trial court overruling appellant's motion for a new trial. Respondents have moved to dismiss the appeal upon several grounds, each of which will be considered separately.

Respondents first contend that this appeal should be dismissed for the reason that notice of motion for a new trial in the district court was not served upon respondents or their counsel. There is no proof of service of this notice, or acknowledgment thereof, in the record. The order of the trial court overruling the motion, however, recites that the same was heard upon stipulation of counsel as to the time of hearing. This of itself would be a waiver of any objection to the failure to serve the notice; besides, the ruling was in favor of the respondents, and they had not been injured. Moreover, this is not a proper ground for dismissal of the appeal. The objection goes to a matter which transpired in the trial court prior to the entry of the order appealed from, and will not be considered in this court until the appeal is considered upon its merits. In the case of Vreeland v. Edens, 35 Mont. 413, 89 P. 735, the court said:

"The absence from the record of anything in support of the motion as made in the trial court is no reason why the appeal from the order denying it should be dismissed. The appeal is given by the statute as a matter of right. The fact that the proceedings anterior to the order are irregular or defective to such an extent that the motion is without merit cannot take away this right. It only goes to the merit of the appeal when submitted to this court for determination. A motion to dismiss an appeal only presents the question whether or not the statutory requirements as to the mode of taking the appeal have been observed." (Turner v. F. W. Ten Winkel Co., 24 Cal.App. 213, 140 P. 1086; Bell v. Staacke, 137 Cal. 307, 70 P. 171.)

The case of Fox v. Rogers, 6 Idaho 710, 59 P. 538, wherein an appeal from an order denying a motion for new trial was dismissed for the reason that the notice of intention to move therefor was not served and filed within ten days after verdict, is overruled on that point.

The second ground assigned for the dismissal of this appeal is that the record has not been properly certified by the trial judge, clerk or attorneys, as to what papers were submitted to the judge or used by him on the hearing of the motion for a new trial. We find in the record, however, a certificate signed by the trial judge designating the papers used and considered by him on the hearing of such motion.

The third reason urged for the dismissal of the appeal is that the record makes no showing that a sufficient undertaking on appeal has been filed with the clerk of the district court. The record contains a certificate of the clerk of the district court to the effect that three hundred dollars in cash had been deposited by the appellant in lieu of an undertaking on appeal, but the date upon which such deposit was made is not given. The certificate of the clerk which was filed with the motion to dismiss, as required by Rule 30 of this court, showed that the deposit was made with him on January 2, 1917, the same day upon which the notice of appeal was filed. Sec. 4809, Rev. Codes, provides for a deposit of cash in lieu of an undertaking on appeal. The third ground for dismissal of the appeal is therefore without merit.

The fourth assignment is to the effect that no complete transcript of the record, as settled by the trial court, has ever been served upon respondents or any of their counsel and that there is no showing that said transcript on appeal has ever been served. Sec. 4434, Rev. Codes, as amended 1911 Sess. Laws, pp. 379, 380, requires the service of the reporter's transcript of the testimony within five days after the receipt thereof upon the adverse party or his attorney. The adverse party shall have ten days after such service within which to point out, by notice, any errors in said transcript and file same with the clerk of the court. This statute makes no requirement of any other service of the reporter's transcript of the testimony. Sec. 4820-A, Rev. Codes, as amended 1911 Sess. Laws, pp. 375, 376, requires the appellant, or his attorney, upon receipt of two copies of the clerk's transcript of the record, to forthwith serve one copy upon the adverse party or his attorney. This transcript is certified by the clerk and not settled by the trial judge. The service provided for by secs. 4820-A and 4434 is mandatory, and failure to make such service as required by the sections of the statute referred to divests this court of jurisdiction to entertain the appeal. (Strand v. Crooked River Min. & M. Co., 23 Idaho 577, 131 P. 5; Coon v....