D. Patrick v. Finch

• Court: Idaho Supreme Court
• Writing for the Court: BUDGE, J.
• Citation: D. Patrick v. Finch, 8 P.2d 776, 51 Idaho 538 (Idaho 1932)
• Decision Date: 18 January 1932
• Docket Number: 5840
• Parties: D. PATRICK, Respondent, v. EDGAR J. FINCH and JESSIE C. FINCH, Husband and Wife, CORA E. VOIGT, Formerly CORA E. WILLIAMS, and DOLL HILL, Respondents, HARLEY WILLIAMS and MARIE WILLIAMS, Husband and Wife, Appellants

8 P.2d 776

51 Idaho 538

D. PATRICK, Respondent, v. EDGAR J. FINCH and JESSIE C. FINCH, Husband and Wife, CORA E. VOIGT, Formerly CORA E. WILLIAMS, and DOLL HILL, Respondents, HARLEY WILLIAMS and MARIE WILLIAMS, Husband and Wife, Appellants

No. 5840

Supreme Court of Idaho

January 18, 1932

APPEAL AND ERROR-NOTICE OF APPEAL-FAILURE TO SERVE.

1. Waiver of service of notice of appeal not made within statutory time for making service nor filed held ineffective (C. S., secs. 7152, 7153).

2. Filing and service of notice of appeal within time and in manner prescribed by statute is jurisdictional, and appeal taken thereafter will be dismissed (C. S., secs. 7152, 7153).

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. A. B. Barclay, Judge.

Motion to dismiss appeal. Granted.

Appeal dismissed. Costs awarded to respondent.

Turner K. Hackman, for Respondent D. Patrick.

O. C Hall, for Appellants.

BUDGE J. Lee, C. J., and Givens, Varian and Leeper, JJ., concur.

OPINION

BUDGE J.

This action was brought by respondent, D. Patrick, to foreclose a real estate mortgage given by respondents Edgar J. Finch and wife. It was alleged in the complaint that appellants and others claimed some interest in the mortgaged premises. Appellants answered denying certain allegations of the complaint and setting forth certain affirmative defenses not necessary to be considered here. The cause was tried without a jury. Findings of fact and conclusions of law were made and filed and judgment was entered in favor of respondent, Patrick, from which judgment appellants have appealed. Respondent Patrick has moved to dismiss the appeal upon the ground, among others, that this court is without jurisdiction of said appeal for the reason that appellants failed to serve notice of appeal upon Edgar J. Finch.

Under the provisions of C. S., sec. 7153, an appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered, a notice stating the appeal from the same, or some specific part thereof, and serving a similar notice on the adverse party, or his attorney. C. S., sec. 7152, provides:

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

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

Judgment was entered in the instant case on September 4, 1931. Notice of appeal was filed November 28, 1931. Undertaking on appeal was filed December 2, 1931. Service of the notice of appeal was not had upon Finch or his attorney. Finch is clearly an adverse party whose interest would be prejudicially affected by a modification or reversal of the judgment appealed from (Bannock Nat. Bank v. Automobile Accessories Co., 36 Idaho 527, 529, 212 P. 864, and cases there cited), and so conceded by reason of the waiver hereinafter referred to.

Appellants seek to avoid their failure to serve the notice of appeal upon Finch or his attorney within the statutory time by filing on January 5, 1932, in this...