Gloubitz v. Smeed Brothers

• Decision Date: 18 February 1933
• Docket Number: 5946
• Parties: SOPHIE GLOUBITZ, Respondent, v. SMEED BROTHERS and STATE INSURANCE FUND, Appellants
• Court: Idaho Supreme Court

20 P.2d 198

52 Idaho 725

SOPHIE GLOUBITZ, Respondent, v. SMEED BROTHERS and STATE INSURANCE FUND, Appellants

No. 5946

Supreme Court of Idaho

February 18, 1933

APPEAL AND ERROR-CERTIFICATE TO TRANSCRIPT-MOTION TO DISMISS.

On motion to dismiss appeal for failure of certificate to identify papers in transcript, appellant should be allowed to file supplemental certificate (I. C. A., secs. 11-213, 11-216).

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. John C. Rice, Judge.

Motion to dismiss appeal. Denied.

Motion for leave to file the supplemental certificate granted and the motion to dismiss the appeal denied.

Leslie J. Aker, for Appellants.

This court has permitted in other cases a corrected certificate to the transcript, offered at the hearing on a motion to dismiss the appeal for lack thereof, to be filed, and denied the motion to dismiss. (Barrow v. B. R. Lewis Lbr. Co., 14 Idaho 698, 95 P. 682; Smith v. Intermountain Auto Co., 25 Idaho 212, 136 P. 1125.)

Carl A Burke, for Respondent.

This court has uniformly held that a failure to properly certify that the transcript contains all papers and files before the trial judge and used by him in his consideration of the case constitutes grounds for dismissal of the appeal.

In Walsh v. Niess, 30 Idaho 325, 164 P. 528, the court dismissed an appeal from an order dissolving an injunction. Following is a quotation from the opinion of the court:

"The effect of the absence of the certificate that the transcript is required to contain, showing that the papers and records contained therein were all of the papers used by the trial judge on the hearing, has recently been considered by this court in the case of Dudacel v. Vaught, 28 Idaho 442, 154 P. 995. It is unnecessary to again review the authorities at length. The appeal will be dismissed."

The recent case of Farm Credit Corp. v. Mulliner, 48 Idaho 306, 281 P. 1113, is very much in point, because it involves the question of an appeal from a judgment of the district court on appeal from the probate court.

MORGAN J. Budge, C. J., and Givens and Holden, JJ., concur.

OPINION

MORGAN, J.

Respondent moved to dismiss the appeal on the ground that the transcript does not contain a certificate to the effect that the contents thereof constitute all the records, papers and files used or considered by the trial judge at the hearing of the case, which was an appeal from the Industrial Accident Board and relies, among other authorities, on Farm Credit Corp v. Mulliner, 48 Idaho 306, 281 P. 1113.

Idaho Code Annotated, secs. 11-213 and 11-216, are as follows:

11-213. "On appeal from a judgment rendered on an appeal, or from an order, except an order granting or refusing a new trial, the appellant must furnish the court with a copy of the notice of appeal, of the judgment or order appealed from, and of papers used on the hearing in the court below."

11-216. "The copies provided for in sections . . . . 11-213 . . must be certified to be correct by the clerk or the attorneys, and must be accompanied with a certificate of the clerk or attorneys, that an undertaking on appeal in due form has been properly filed or a stipulation of the parties...