In re Drainage Dist. No. 3 of Ada County

• Decision Date: 18 March 1925
• Parties: In the Matter of DRAINAGE DISTRICT No. 3 OF THE COUNTY OF ADA, IN THE STATE OF IDAHO. W. T. BOOTH, J. A. GALLAHER, CAROLINE OAKES, EDWARD GREENWALT and JOHN G. BRECKENRIDGE, Appellants, v. DRAINAGE DISTRICT No. 3, C. A. GROVES, LAFE BOONE and MAT BEGLAN, Respondents
• Court: Idaho Supreme Court

235 P. 895

40 Idaho 549

In the Matter of DRAINAGE DISTRICT No. 3 OF THE COUNTY OF ADA, IN THE STATE OF IDAHO. W. T. BOOTH, J. A. GALLAHER, CAROLINE OAKES, EDWARD GREENWALT and JOHN G. BRECKENRIDGE, Appellants, v. DRAINAGE DISTRICT No. 3, C. A. GROVES, LAFE BOONE and MAT BEGLAN, Respondents

Supreme Court of Idaho

March 18, 1925

MOTION TO DISMISS APPEAL-APPLICATION OF RULES 26 AND 28-APPEAL BOND - STATUTORY CONSTRUCTION - PARTICULAR PROVISION CONTROLLING.

1. Where counsel for appellant procures from a justice of this court an order extending the time to file transcript under the provisions of Rules 26 and 28 the day after the ninety-day period has expired, and upon motion to dismiss his appeal makes affidavit that he believed under his computation he had obtained the extension in time, held, that the appeal will not be dismissed.

2. The procuring of an order extending time within which to file transcript on appeal, after the time for filing same has expired, under Rules 26 and 28 does not in and of itself extend the time but may be considered with other facts and circumstances to negative lack of diligence.

3. Where there are two provisions in a statute, one of which is general and the other particular, and the particular provision relates to a specific subject within the scope of the general provision, the particular provision must prevail and if both cannot apply, the particular provision will be treated as an exception to the general provision.

4. In C. S., sec. 4515, providing for appeals to the supreme court under the drainage district law, the provision permitting such appeals to be taken "in the manner provided by law for appeals in civil actions" is controlled by the particular provision at the end of said section: "Upon such appeal no bond shall be required and no stay shall be allowed."

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Raymond L. Givens, Judge.

Motion to dismiss appeal. Denied.

Motions to dismiss denied.

P. E Cavaney, for Respondents.

Unless an appeal is perfected in the manner provided by statute, this court does not acquire jurisdiction to hear such appeal, and the same should be dismissed. (Kimsey v. Highland L. & L. Co., 37 Idaho 9, 214 P. 750; Kingsbury v. Lee, 36 Idaho 447, 211 P. 552; Woodmansee & W. Co. v. Woodmunsee, 31 Idaho 747, 176 P. 148; Cole v. Fox, 13 Idaho 123, 88 P. 561; Haas v. Teeters, 17 Idaho 550, 106 P. 305; Hattabaugh v. Vollmer, 5 Idaho 23, 46 P. 831; 19 C. J., secs. 129, 131, p. 670; Beckwith v. Kansas City & O. R. Co., 28 Kan. 484; Drainage Dist. No. 5 v. Ferrell, 32 Okla. 381, 122 P. 698; Vowell v. Taylor, 8 Okla. 625, 58 P. 944; In re Wilson, 21 Ky. L. 231, 51 S.W. 149; Smith v. Gustin, 169 Ind. 42, 80 N.E. 959, 81 N.E. 722; Brady v. Garrison, 178 Ind. 459, 99 N.E. 738; Prough v. Prough, 174 Ind. 57, 91 N.E. 337; Burke v. Jackson, 22 Ohio St. 268.)

Where the transcript on appeal has not been filed in this court within ninety days after the appeal has been perfected as required by Rule 26, and an application for extension of time has not been made prior to the expiration of such time, the appeal is subject to dismissal. (Intermountain Assn. of Cr. Men v. Rexburg Soc. of Equity, Ltd., 38 Idaho 121, 220 P. 114; T. W. & L. O. Naylor Co. v. Bowman, 36 Idaho 211, 209 P. 1071; Lake & Co. v. Bales, 36 Idaho 142, 210 P. 396; Dye v. Moscow State Bank, 36 Idaho 464, 212 P. 870; Gates v. Todd Commercial Co., 36 Idaho 784, 213 P. 1017; California Gulch Placer Min. Co. v. Patrick, 37 Idaho 661, 218 P. 378; Keating v. McGivney, 37 Idaho 797, 218 P. 791; Utana Min. Corp. v. Salmon River P. & L Co., 37 Idaho 793, 218 P. 789; 4 C. J., secs. 2206, 2379.)

Failure to apply for an extension of time within which to file a transcript on appeal negatives the question of due diligence. (Thomas Union Sav. Bldg. & T. Co., 38 Idaho 247, 221 P. 132; Parkinson v. Winzler, 36 Idaho 449, 210 P. 738; Blumauer-Frank Drug Co. v. First Nat. Bank, 35 Idaho 436, 206 P. 807; Stout v. Cunningham, 29 Idaho 809, 162 P. 928.)

J. B. Eldridge, for Appellants.

An appeal bond is purely statutory. (3 C. J., p. 1106, sec. 1140.)

"That a day, in law, is not divisible is mere fiction only observed for the purpose of justice and never adhered to when it would work mischief." (Fuller v. Schroeder, 20 Neb. 631, 31 N.W. 109; Gallagher v. Hein, 24 App. Cas. (D. C.) 296; 2 Am. & Eng. Ann Cas. 133.)

Failure to file the transcript within 90 days, or failure to procure an order extending the time for filing transcript within 90 days, did not divest the court of jurisdiction. (Wolter v. Church, 30 Idaho 427, 165 P. 521; Stout v. Cunningham, 29 Idaho 809, 162 P. 928; State v. Walker, 37 Idaho 18, 214 P. 885; National Park Lumber Co. v. Nelson, 37 Idaho 758, 218 P. 367; T. W. & L. O. Naylor Co. v. Bowman, 36 Idaho 211, 209 P. 1071.)

A misunderstanding of the rules of courts or of a statute relative to time is a sufficient excuse for not obtaining the order before the time expired. (Nottingham v. McKendrick, 38 Ore. 495, 57 P. 195; Flynn v. Davidson, 80 Ore. 502, 155 P. 197; In re Stone's Estate, 173 Cal. 675, 161 P. 258; Gulf C. & S. F. Ry. Co. v. McMahan (Tex. Civ.), 20 S.W. 954; Dew v. Weekes (Tex. Civ.), 53 S.W. 706; Lukins v. Traylor, 22 N. M. 207, 160 P. 349; Hughes v. Kaw Inv. Co., 129 Miss. 434, 91 So. 702.)

BUDGE, J. William A. Lee, C. J., WM. E. LEE, J., Concurring Specially.

OPINION

BUDGE, J.

Although several grounds are specified for the motion to dismiss the appeal in this case, counsel have practically confined their argument to two grounds only; first, that the transcript was not filed not any extension of time granted within the ninety days after perfection of appeal, as required by Rule 26, and second, that no undertaking on appeal was given.

With regard to the first ground, it appears that the day after the expiration of the ninety-day period counsel for appellant applied for and obtained from the then chief justice of this court an order extending their time to file transcript on appeal. Ivan L. Hiler, of counsel for appellant, has filed an affidavit in which he states that he was under the impression that the first day, which is to be excluded under the statute in computing the ninety days would not begin until the hour when the appeal was actually perfected, which was approximately 2 P. M. on August 7, 1924; that this first day would therefore continue until 2 P. M. August 8th, so that the ninety-day period would begin at the latter hour and would not terminate until 2 P. M. November 6th, just after he had obtained his order for extension. Without passing on the propriety of this method of computing time, under C. S., sec. 9451, the default of appellants' counsel, if it be conceded to be a default, is by so slight a margin, that in the light of the excuses recited in their showing in opposition to the motion to dismiss, they may be given the benefit of the doubt and this ground of the motion disregarded, particularly in view of the fact that it does not involve a jurisdictional question. The procuring of an order extending time within which to file transcript on appeal, after the time for filing same has expired, under Rules 26 and 28, does not in and of itself extend the time but may be considered with other facts and circumstances to negative lack of diligence.

The objection that no jurisdiction was acquired by this court because no bond on appeal was filed, raises a more serious question. C. S., sec. 4515 of the Drainage Law, is as follows:

"Every person or corporation feeling himself or itself aggrieved by the judgment for damages or the assessment for benefits may appeal to the supreme court of this state in the manner provided by law for appeals in civil actions to the supreme court within 30 days after the entry of the judgment confirming the report of the commissioners; and such appeal shall bring before the supreme court the propriety and justness of the amount of damages or assessment of benefits in respect to the parties to the appeal. Upon such appeal no bond shall be required and no stay shall be allowed."

It will be noted from a reading of this section that it provides in the first place that appeals to this court shall be prosecuted "in the manner provided by law for appeals in civil actions to the supreme court," which of course would require an undertaking on appeal as prescribed by C S., sec. 7153. But the section concludes with the sentence, "Upon such appeal no bond shall be required and no stay shall be allowed." Counsel for respondent contends that the words "no bond shall be required" refer only to a super sedeas bond, and that an appeal bond is plainly required by the words "in the manner provided by law for appeals in civil actions." In construing this section it will be noted that the language "in the manner provided by law for appeals in civil actions" is a general provision, but that the last sentence of ...