McCurtain v. Newton

• Court: Idaho Supreme Court
• Writing for the Court: WM. E. LEE, J.
• Citation: McCurtain v. Newton, 40 Idaho 401, 232 P. 565 (Idaho 1925)
• Decision Date: 03 January 1925
• Parties: MARY MCCURTAIN, A. J. KOEBEL and WILLIAM J. COSTELLO, Appellants, v. J. W. NEWTON, C. H. VANCURLER, W. M. HOLLEMBAEK, W. C. AMES and J. D. COLLINS, Respondents

232 P. 565

40 Idaho 401

MARY MCCURTAIN, A. J. KOEBEL and WILLIAM J. COSTELLO, Appellants, v. J. W. NEWTON, C. H. VANCURLER, W. M. HOLLEMBAEK, W. C. AMES and J. D. COLLINS, Respondents

Supreme Court of Idaho

January 3, 1925

UNDERTAKING ON APPEAL-FAILURE TO FILE IN TIME-DISMISSAL OF ACTION.

This court will dismiss an appeal on its own motion when it appears that an undertaking on appeal was not filed within five days after service of the notice of appeal, and that no deposit was made and the undertaking was not waived, as provided in C. S., sec. 7153.

APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. John M. Flynn, Judge.

Action to enjoin the sale of corporate stock. Temporary injunction dissolved and action dismissed. Appeal dismissed.

Appeal dismissed. Costs to respondent.

Myrvin Davis and W. J. Costello, for Appellants.

John J Fitzgerald, for Respondents.

Counsel file no briefs on point decided.

WM. E LEE, J. McCarthy, C. J., Budge and William A. Lee, JJ concur.

OPINION

WM. E. LEE, J.

--This action was brought to enjoin the sale of certain stock of a corporation because of a failure to pay an assessment. The court issued a temporary injunction. The cause was tried on the merits, and the temporary injunction was dissolved and the action dismissed. The decree was filed June 22, 1923. Notice of appeal to this court was filed June 30, 1923. That the notice of appeal was served by mail is disclosed by an affidavit dated and filed July 2, 1923, the date of mailing the notice not being specifically stated. The clerk of the trial court certifies "that an undertaking on appeal in due form has been properly filed by said plaintiffs and appellants on the 12th day of July, 1923, to which no exception has been filed." It is apparent, therefore, that the undertaking on appeal was filed at least ten days after service of the notice of appeal. Under C. S., sec. 7153, an appeal to this court ". . . . is ineffectual for any purpose unless within five days after service of the notice of appeal, an undertaking be filed, . . . ." The undertaking not having been filed within five days after service of notice of appeal, this court is without jurisdiction to consider the appeal. (Kimzey v. Highland Livestock & Land Co., 37 Idaho 9, 214 P. 750; Myers v. Harvey, 39 Idaho 724, 229 P. 1112, and cases there cited; Rupert National Bank v. Insurance Company of North America, post, p. 530, 40 Idaho 530, 234 P. 465.)

This action...