Continental & Commercial Trust & Savings Bank v. Werner

• Decision Date: 03 February 1923
• Citation: 36 Idaho 601,215 P. 458
• Court: Idaho Supreme Court
• Parties: CONTINENTAL & COMMERCIAL TRUST & SAVINGS BANK, Appellant, v. WILHELMINA WERNER, GOODING COUNTY, IDAHO, et al., Respondents

215 P. 458

36 Idaho 601

CONTINENTAL & COMMERCIAL TRUST & SAVINGS BANK, Appellant, v. WILHELMINA WERNER, GOODING COUNTY, IDAHO, et al., Respondents

Supreme Court of Idaho

February 3, 1923

APPEAL-DISMISSAL-JURISDICTION.

APPEAL from the District Court of the Fourth Judicial District, for Gooding County. Hon. H. F. Ensign, Judge.

Action to foreclose lien. Appeal dismissed.

Appeal dismissed. Costs awarded to respondent.

Walters Parry & Bailey, Paul S. Haddock and E. D. Reynolds, for Appellant.

M. F Ryan and A. F. James, for Respondent, Gooding County.

Counsel cite no authorities on point decided.

BUDGE C. J. McCarthy and Dunn, JJ., concur.

OPINION

BUDGE C. J.

This action was brought by Continental & Commercial Trust & Savings Bank against Wilhelmina Werner, her husband, and Gooding county, Idaho, to foreclose a lien upon certain real property for the unpaid principal, interest and assessments due for water right. Default was entered against Wilhelmina Werner and no service was made upon her husband. Respondent, Gooding county, answered, claiming its lien for taxes on said premises to be prior to the lien of appellant. The cause was tried to the court upon a stipulation of facts and judgment was entered in favor of appellant and against respondent, Wilhelmina Werner, ordering foreclosure and sale of the premises. The court adjudged and decreed the lien of respondent, Gooding county, to be a prior lien to that of appellant. Judgment was entered and filed on June 20, 1921. Notice of appeal from the judgment was not filed until September 20, 1921, more than 90 days after the entry of the judgment and after the statutory time for filing the same had expired.

C. S., sec. 7152, provides as follows:

"An appeal may be taken to the supreme court from a district court:

"1. From a final judgment in an action . . . . within 90 days after the entry of such judgment . . . . "

In the case of Goade v. Gossett, 35 Idaho 84, 204 P. 670, it is held: "Appeal from judgment taken after expiration of statutory time will be dismissed."

See, also, to the same effect: Glenn v. Aultman & Taylor M. Co., 30 Idaho 719, 167 P. 1163; Mills v. Board of County Commrs., 35 Idaho 47, 204 P. 876; Chapman v. Boehm, 27 Idaho 150, 147 P. 289; Moe v. Harger, 10 Idaho 194, 77 P. 645.

In the case last cited it is said: "This is a jurisdictional question and the court has no power to extend the time or cure the...