Lydon v. Godard

• Decision Date: 13 December 1897
• Citation: 5 Idaho 607,51 P. 459
• Parties: LYDON v. GODARD
• Court: Idaho Supreme Court

51 P. 459

5 Idaho 607

LYDON v. GODARD

Supreme Court of Idaho

December 13, 1897

APPEAL-NOTICE OF APPEAL-SERVICE OF NOTICE.-W. appealed from a joint judgment against her and G., but failed to serve notice of appeal on G. The respondent moved to dismiss appeal. Held that G. was an adverse party to W. on the appeal, and that notice of appeal should have been served on G.

CERTIFICATE OF TRANSCRIPT-COST OF PROCURING.-Appellant's attorney presented to the attorney for, respondent a transcript on appeal for certification, and the attorney for respondent refused to certify the transcript, or to point out any errors therein. Held, that the appellant should recover the cost of procuring a certification of the transcript from the respondent.

(Syllabus by the court.)

APPEAL from District Court, Nez Perces County.

James W. Reid, for Appellant, cites no authorities nor makes any argument on the point decided by the court.

James E. Babb, for Respondent, files no brief.

QUARLES J. Huston, J., concurs. SULLIVAN, C. J., Dissenting.

OPINION

QUARLES, J.

The respondent moved to dismiss this appeal, which is brought here from a judgment in favor of the respondent (plaintiff below), and against the appellant, Edna G. Ward, and Mary E Godard, jointly, on the ground that said Godard did not join in the appeal, and was not served with notice of appeal. The judgment being joint, said Godard was a necessary party to the appeal; and, not joining in the appeal, it was necessary to serve upon her, as an adverse party, the notice of appeal. (Coffin v. Edgington, 2 Idaho 627, 23 [5 Idaho 608] P. 80; Jones v. Quantrell, 2 Idaho 153, 9 P. 418.) For the foregoing reasons the appeal herein is dismissed without prejudice to another appeal.

It is made to appear to this court that the attorney for the appellant presented to the attorney for the respondent the transcript on appeal for certification, and that the attorney for the respondent refused to certify the transcript, or to point out any error therein. Rule 27, paragraph 9, of this court, provides that: "If a party shall present to the attorney of the adverse party a transcript on appeal on a civil cause, and request his certificate that the same is correct, and said attorney, upon such request, shall, for a period of five days, neglect or refuse to join in such certificate, or, if it be incorrect, shall neglect or refuse for the same time to serve upon the party making the request a written statement of the particulars in which the transcript is incorrect, or, upon the presentation of the transcript corrected in the particulars thus specified, shall still neglect or refuse, for a period of two days, to join in such certificate, the cost of procuring a certificate to such transcript from the clerk of the proper court shall be taxed against the party whose attorney so neglects or refuses." (32 P. xi.) It is urged by the respondent that that part of rule 27 above quoted is void, for the reason that this court has no power to make said rule. In support of this contention, we are cited to the case of Loftus v Fischer, 113 Cal. 286, 45 P. 328. A careful consideration of the decision in the case cited convinces us that it has no application to the case before us. In that case the supreme court of California says: "The code provides the mode by which the appellant shall bring his appeal to this court, and, as one of the steps in the process, that the clerk shall certify to the correctness of the contents of the transcript." We must take it for granted that the supreme court of California correctly states and interprets the code of that state. Section 4821 of the Revised Statutes of our state, authorizes the certification to the transcript to be made "by the clerk or the attorneys." The rule under consideration does not conflict with said statute, as did the California rule. In Potter v. Talkington, ante, p. 316, 49 P. 14, this court stated the object of the rule, and we there said that "it is incumbent on this court to see that the rule is enforced." Inasmuch as costs on appeal are within the control and discretion of the court, and the rule in question was adopted for the benefit of both parties, and for the public good, we see no reason why it should not be enforced. It is to the interest of litigants, the interest of the court, and of the public, that correct transcripts, containing all of the record of the case necessary on the appeal, and no more, should be inserted in the transcript. Respondent's attorney must necessarily, sooner or later, examine the transcript. It works no hardship on him to examine the transcript before it is filed, and when he does so, and points out errors and omissions, it tends to prevent motions to strike out portions in the transcript, and suggestions of diminution of the record, which not only cause annoyance to the court, but delays in litigation. The well-known and highly commendable liberality and courtesy of members of the bar, and the fraternal feelings that animate them in their intercourse with each other, are in consonance with the object sought to be promoted by the rule in question. Costs of procuring a certification of the transcript on appeal in this case are awarded to the appellant. The...