Goade v. Gossett

• Decision Date: 15 February 1922
• Citation: 35 Idaho 84,204 P. 670
• Parties: J. W. GOADE, Appellant, v. CLARA GOSSETT, CHARLES GOSSETT, CLEVE V. FLEMMING and V. C. FLEMMING, Respondents
• Court: Idaho Supreme Court

204 P. 670

35 Idaho 84

J. W. GOADE, Appellant, v. CLARA GOSSETT, CHARLES GOSSETT, CLEVE V. FLEMMING and V. C. FLEMMING, Respondents

Supreme Court of Idaho

February 15, 1922

JUDGMENT-ORDER DENYING NEW TRIAL-APPEAL-DISMISSAL.

1. Appeal from judgment taken after expiration of statutory time will be dismissed.

2. Appeal from order denying motion for new trial taken before such order is made will be dismissed.

3. A motion for new trial must be disposed of by an order of the trial court granting or denying such motion, and the simple announcement of the trial judge of what his decision will be is not such an order.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Motion to dismiss appeal. Granted.

Appeals dismissed with costs to respondent.

G. W Lamson, for Appellant, files no brief on motion.

Scatterday & Stone, for Respondents.

An appeal taken prior to the signing and filing of an order overruling a motion for a new trial, or prior to the entry of final judgment, is prematurely taken, confers no jurisdiction upon the supreme court, and will, on motion, be dismissed. (C. S., sec. 7152; Thompson v. Harris, 30 Idaho 109 163 P. 611; Stout v. Cunningham, 33 Idaho 83, 189 P 1107; Santti v. Hartman, 29 Idaho 490, 161 P. 249; Continental & Commercial Trust & Savings Bank v. Werner, 33 Idaho 764, 198 P. 471.)

An appeal from a judgment not taken within the time prescribed by statute confers no jurisdiction upon the supreme court and will, on motion, be dismissed. (C. S., sec. 7152; Chapman v. Boehm, 27 Idaho 150, 147 P. 289; Thompson v. Harris, 30 Idaho 109, 163 P. 611.)

Our statutes nowhere make provision that the filing of a notice of motion for new trial shall suspend the time within which a judgment becomes final and nonappealable, and the filing of such motion does not, in fact, have such effect. (Times Printing & Pub. Co. v. Babcock, 31 Idaho 770, 176 P. 776.)

DUNN, J. Rice, C. J., and Budge, McCarthy and Lee, JJ., concur.

OPINION

DUNN, J.

In this case there was an appeal from the judgment and also from the order denying the motion for a new trial. Respondent moved to dismiss the appeal from the judgment on the ground that it was taken too late, since the judgment was entered on June 4, 1920, and the notice of appeal therefrom was not filed in the office of the clerk until February 15, 1921. Under these conditions, since the time for taking this appeal was 90 days from the date of entering the judgment, this appeal must be dismissed.

Respondent also moved to dismiss the appeal from the order denying the motion for a new trial on the ground that said appeal was prematurely taken, for the reason that said order was signed by the court some time in the month of March, 1921, and the appeal from said order was filed on the fifteenth day of February, 1921. It appears by the certificate of the trial judge that while said order bore date of February 7, 1921, it was in fact not signed until some time in the month of March. It also appears by another certificate of said trial judge that a letter bearing date of February 4, 1921, was written on said date to counsel for both parties in this case advising them of his decision on the ...