Corker v. Elmore County
| Decision Date | 07 February 1906 |
| Citation | 11 Idaho 787,84 P. 509 |
| Parties | CORKER v. ELMORE COUNTY |
| Court | Idaho Supreme Court |
MOTION TO DISMISS-COUNTY A PARTY-SERVICE OF TRANSCRIPT AND BRIEF OF APPELLANT ON ATTORNEY GENERAL.
1. Under the provisions of subdivision 1 of section 250 of the Revised Statutes, as amended by Laws of 1901, page 163, the attorney general of this state is the attorney for a county when it is a party in a case on appeal, unless the interest of the county is adverse to the state or some officer thereof, acting in his official capacity, and in such case under the provisions of paragraph 9, rule 27 of the rules of this court, the transcript on appeal must be served on him as required by said rule.
2. The briefs of appellant in such cases must also be served on the attorney general as provided by paragraph 3 of rule 6 of the rules of this court.
(Syllabus by the court.)
APPEAL from the District Court of Elmore County. Honorable Lyttleton Price, Judge.
Motion to dismiss appeal. Granted.
Motion sustained and case dismissed, with costs in favor of respondent.
W. C Howie, for Appellant, cites no authorities on the points decided.
J. J Guheen, Attorney General, and Edwin Snow, for Respondent.
The facts, so far as material, are stated in the opinion. SULLIVAN, J.--This is an appeal from a judgment of the district court on an appeal from an order of the board of county commissioners of Elmore county allowing a certain claim against the county. A motion has been made by the attorney general to dismiss the appeal upon the ground that the notice of appeal was not served upon the adverse party or his attorneys, and that no affidavit of such service appears in the record. It appears from the record that one Daniel W. Shetler appeared for the county in the court below and that he resides at Glenn's Ferry in said Elmore county, and that the attorney for appellant, on the twenty-eighth day of February, 1905, served a copy of the notice of appeal by mail upon said Shelter. While the affidavit of service states that the copy was mailed to Shelter on the twenty-eighth day of February, 1905, the jurat bears date of the twenty-fourth day of February, 1905. The latter date is shown by the affidavit of the attorney for appellant to have been a mistake, and that it was actually sworn to on the twenty-eighth day of February. Shetler having been the attorney for the county in the court below, it was proper to serve the notice of appeal upon him. The affidavit of the service of the notice of appeal and the affidavit explanatory thereof are sufficient to show the service of the notice of appeal.
The second ground of the motion is that no service of the transcript or of appellant's brief has ever been made upon the attorney general. It is contended that the attorney general is the only officer authorized by law to receive and acknowledge service of the transcript and brief in all cases wherein the state or any county of the state is a party. Under the provisions of subdivision 1 of section 250 of the Revised...
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State v. Cole
...appeal is subject to dismissal upon motion, but none was made in this case. (State v. Miles, 11 Idaho 784, 83 P. 697; Corker v. Elmore County, 11 Idaho 787, 84 P. 509; State v. Squires, 15 Idaho 327, 97 P. 411; v. Burgy, 22 Idaho 586, 126 P. 779.) The allegations of the complaint so far as ......
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State v. Squires
...therefore, that the transcript be served upon the attorney general as the attorney for the adverse party. (State v. Miles, supra; Corker v. Elmore Co., supra.) is no evidence whatever in the record showing service of the transcript upon the attorney general or anyone in his behalf. On the c......