Eichner v. Meyer
| Decision Date | 09 January 1936 |
| Docket Number | 6281 and 6292 |
| Parties | BERTHA EICHNER, Respondent, v. AUGUST MEYER and ALMA MEYER, His Wife, Appellants, and HERMAN MEYER, Respondent |
| Court | Idaho Supreme Court |
APPEAL AND ERROR-CERTIFICATE TO TRANSCRIPT, INSUFFICIENCY OF-APPEAL DISMISSED-COURT RULES-ORIGINAL WRIT-APPLICATION INSUFFICIENCY OF.
1. Certificate attached to transcript on appeal from orders disposing of motions must be signed by attorneys for all parties, in view of statute and court rules, and hence certificate signed only by appellants' attorney is fatally defective (I. C. A., sec. 11-216; Supreme Court Rules 23, 30).
2. Appeal must be dismissed where only appellants' attorney signed certificate attached to transcript on appeal from orders denying motion to vacate sheriff's sale following mortgage foreclosure and granting motion for writ of assistance (I. C. A., sec. 11-216; Supreme Court Rules 23 30).
3. Decisions denying motion to vacate sheriff's sale following mortgage foreclosure and granting motion for writ of assistance held "orders," not "judgments," respecting necessity and sufficiency of certificate attached to transcript on appeal (I. C. A sec. 11-216; Supreme Court Rules 23, 30).
4. On appeal from orders denying motion to vacate sheriff's sale following mortgage foreclosure and granting writ of assistance, appellants held not entitled to writs of mandamus, prohibition and restitution, in absence of properly certified transcript; Supreme Court being unable to determine whether lower court acted without jurisdiction or refused to act in such manner as to justify writs.
APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Gillies D. Hodge, Presiding Judge.
Appeal from orders denying motion to vacate sheriff's sale granting motion for a writ of assistance, and application for writs of mandamus, prohibition and restitution. Appeal dismissed and writs denied.
Appeal dismissed. Costs to respondent.
Ben F. Tweedy, for Appellants.
There is not a point nor an assignment of error in appellants' brief that requires the consideration of oral evidence or of a reporter's transcript, and, where this is the truth, the absence of oral evidence, if any, from the record on appeal is no ground for dismissal. (Reilly v. Board of Commrs., 29 Idaho 212, 158 P. 322; Haddock v. Jackson, 51 Idaho 560, 8 P.2d 279.)
Cox & Ware, for Respondent.
Upon an appeal from an order on a contested motion, the appellant must furnish the court with a copy of all papers used on the hearing in the court below, and the transcript of record on appeal must show that it contains all of the records or files submitted to the judge and by him used on the hearing in question, and that the same constitute all records, papers and files used or considered by the judge on such hearing. This certificate must be signed by the judge, clerk or the attorneys, and in the absence of such a certificate the transcript will be stricken on motion and the appeal dismissed. (Section 11-213, I. C. A., Rule 23 of the Supreme Court; Village of Sand Point v. Doyle, (1903) 9 Idaho 236, at 237, 74 P. 861; Hall v. Jensen, (1908) 14 Idaho 165, at 170, 93 P. 962; Johnston v. Bronson, (1911) 19 Idaho 449, at 452, 114 P. 5; Walsh v. Niess, (1917) 30 Idaho 325, at 326, 164 P. 528.)
Appellants ' appeal is from an order denying their motion to vacate a sheriff's sale following foreclosure of a real estate mortgage, and an order granting respondent's motion for a writ of assistance following said sale, and striking appellants' pleadings and motions from the files in said matter. Appellants have also applied for writs of mandamus, prohibition and restitution, basing their application on, by incorporation therein by reference thereto of, the clerk's transcript in the appeal above referred to.
Respondent has moved to dismiss the appeal on the ground that the transcript has not been certified in accordance with Rule 23 of this court; the material portion of which is as follows:
"The transcript or record on appeal shall show that there is attached to or made a part of it all orders made by the judge disposing of a motion for a new trial, or any other contested motion, and all judgments on appeal from a board, commission, or inferior court, a certificate substantially as follows, signed by the judge, clerk, or attorneys, to wit: . . . ."
Two certificates are attached to the transcript, the first entitled Certificate and Additional Praecipe, the material portion of which is as follows:
"It is further hereby certified that the following papers, to-wit: (enumerating certain papers) all of which are of the records and files, were submitted to the Judge and by him used on the aforesaid motion of appellants for vacation of the sheriff's sale, filed in May, 1935, and constitute all the records, papers and files used or considered by said Judge on said motion on denial of said motion by his order refusing to vacate the said sheriff's sale."
signed only by appellants' attorney, and an Amended Certificate and Additional Praecipe as follows:
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Julien v. Barker
...In some of these cases the augmentation was permitted when requested as late as the hearing on the motion to dismiss. In Eichner v. Meyer, 56 Idaho 751, 58 P.2d 845, the certificates were signed by appellant's attorney only. The court, speaking through Chief Justice Givens, 'Considering Rul......
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