McElroy v. Boise Valley Traction Co.

• Decision Date: 10 December 1924
• Citation: 40 Idaho 44,230 P. 1012
• Parties: HUGH E. MCELROY, Appellant, v. BOISE VALLEY TRACTION COMPANY and PUBLIC UTILITIES COMMISSION OF THE STATE OF IDAHO, Respondents
• Court: Idaho Supreme Court

230 P. 1012

40 Idaho 44

HUGH E. MCELROY, Appellant, v. BOISE VALLEY TRACTION COMPANY and PUBLIC UTILITIES COMMISSION OF THE STATE OF IDAHO, Respondents

Supreme Court of Idaho

December 10, 1924

APPEAL from order of the Public Utilities Commission. Motions to strike the transcript and dismiss the appeal granted, and appeal dismissed.

Motion to dismiss the appeal sustained.

Hugh E McElroy, in pro. per., for Appellant, cites no authorities.

Hawley & Hawley and A. J. Priest, for Boise Valley Traction Co.

Where a record on appeal from the Public Utilities Commission omits a transcript of evidence required by law to be therein, or is not certified by the commission but by the secretary thereof or the certificate does not cover all parts of such record required by law, the supreme court cannot consider the order of the commission appealed from, and the appeal must be dismissed. (Sec. 9, as amended, and sec. 13, art. 5, Idaho Const.; sec. 6, chap. 72, 1921 Sess. Laws; Rule 33, Idaho Supreme Court; C. S., secs. 2397, 2401, 2405, 6881, 6882 6886; Robinson v. School District, 36 Idaho 133, 209 P. 726; McCarty v. Warnkin, 35 Idaho 614, 207 P 1075; Biwer v. Van Dorn, 32 Idaho 213, 179 P. 953; Spencer v. John, 33 Idaho 717, 197 P. 827; Thomas v. Union Savings etc. Co., 38 Idaho 247, 221 P. 132; Wells v. Culp, 30 Idaho 438, 166 P. 218; Minneapolis Threshing Mach. Co. v. Peterson, 31 Idaho 745, 176 P. 99; Ellsworth v. Hill, 34 Idaho 359, 200 P. 1067; Keller v. McCarty, 38 Idaho 18 219 P. 1063; Bergh v. Pennington, 33 Idaho 726, 198 P. 158; McCormick v. Brown, 22 Idaho 52, 125 P. 197; Shurtliff v. Extension Ditch Co., 14 Idaho 416, 94 P. 574; Edwards v. Anderson, 23 Idaho 508, 130 P. 1001; Boise-Payette Lumber Co. v. McCarthy, 31 Idaho 305, 170 P. 920; Mallory v. Wauh, 5 Kan. App. 879, 48 P. 147.)

A. H. Conner, Attorney General, and Herbert Wing, Assistant, for Respondent Public Utilities Commission, file no brief.

VARIAN, Commissioner. McCarthy, C. J. Budge and William A. Lee, JJ., concur. Dunn and Wm. E. Lee, JJ., did not sit at the hearing nor participate in the decision.

OPINION

VARIAN, Commissioner.

This is an appeal from an order of the Public Utilities Commission authorizing respondent to abandon a portion of its railway system known as McDermitt stub and denying appellant's petition for rehearing therein.

Respondent Boise Valley Traction Company has moved to strike the transcript and dismiss the appeal, assigning several grounds therefor. It is first contended that a copy of the testimony taken in the cause before the Public Utilities Commission was not served, filed or made a part of the transcript on appeal.

What constitutes the record on appeal in such cases is prescribed by the provisions of sec. 2497, C. S., as amended by sec. 6, chap. 72 of the Laws of 1921 at page 142 et seq., which reads as follows:

"Section 2497. Record on Appeal. In case of an appeal from any order of the commission, the original exhibits, together with one copy of a transcript of the testimony, the pleadings, moving papers, record and proceedings in the cause, the findings of the commission, the order appealed from, the notice of appeal, and stipulation, if any, shall constitute the record on appeal. Upon the payment of the fees therefor, such record, with the exception of the original exhibits, with one copy for service, shall be prepared and certified by the commission and delivered to the party appealing, who shall transmit the original to the clerk of the supreme court, with the fees for filing, within such time as is now or shall be designated by rule of the supreme court, and shall forthwith serve one copy upon the other party to the proceeding or his attorney, or if there be more than one party to the proceeding appearing separately in person or by attorney, then on one of said parties or his attorney, and shall serve a notice, designating the party or attorney upon whom he has made such service, upon such other parties or their attorneys as shall have been served with a copy of the notice of appeal. Proof of such service shall be filed with the clerk of the supreme court. The original exhibits, certified to be such by the commission, shall be deposited by the commission with the clerk of the supreme court at the time of the delivery of the record in the case to the appellant. Provided, That the appellant and the commission may stipulate that a specified portion only of the transcript of the evidence shall be included in the record on appeal. Any party to the proceeding, however, upon payment of the fees therefor, may procure a certified copy of any portion of the transcript not covered by the stipulation, and a copy for service upon the appellant, and deposit the same...