McMillan v. Sproat

• Court: Idaho Supreme Court
• Writing for the Court: BUDGE, C. J.
• Citation: McMillan v. Sproat, 47 Idaho 724, 278 P. 224 (Idaho 1929)
• Decision Date: 05 June 1929
• Docket Number: 5280
• Parties: THOMAS MCMILLAN, Respondent, v. DAVID SPROAT and JESSIE H. SPROAT, Appellants

278 P. 224

47 Idaho 724

THOMAS MCMILLAN, Respondent, v. DAVID SPROAT and JESSIE H. SPROAT, Appellants

No. 5280

Supreme Court of Idaho

June 5, 1929

APPEAL AND ERROR-UNDERTAKING ON APPEAL-FAILURE TO FILE-DISMISSAL.

Failure to file undertaking within five days after service of notice of appeal, as required by C. S., sec. 7153, prevented supreme court from taking jurisdiction of appeal and required dismissal thereof.

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

Motion to dismiss appeal. Appeal dismissed.

Appeal dismissed.

Richards & Haga, for Respondent.

Unless the undertaking on appeal be actually filed with the clerk of the trial court within five days after service of the notice of appeal, the appeal will be dismissed. (Brown v. Hanley, 3 Idaho 219, 28 P. 425; Cole v. Fox, 13 Idaho 123, 28 P. 561; Myers v. Harvey, 39 Idaho 724, 229 P. 1112; Caldwell v. Evans, ante, p. 342, 275 P. 779.)

J. R. Smead, for Appellants, cites no authorities on point decided.

BUDGE, C. J. Givens, T. Bailey Lee, Wm. E. Lee and Varian, JJ., concur.

OPINION

BUDGE, C. J.

Respondent has moved to dismiss appellants' appeal for the reason that the undertaking on appeal was not filed within five days after the service of the notice of appeal. The notice of appeal was served May 16, 1928, and the undertaking on appeal was filed May 22, 1928. C. S., sec. 7153, provides in material part that an appeal "is ineffectual for any purpose unless within five days after service of the notice of appeal, an undertaking be filed, or a deposit of money be made with the clerk, . . . . or the undertaking be waived by the adverse party in writing." There was no deposit of money with the clerk, nor was the undertaking waived. The provisions of the foregoing statute are mandatory and jurisdictional, and failure of compliance therewith gives this court no jurisdiction to entertain the appeal, and the same must be dismissed. (Brown v. Hanley, 3 Idaho 219, 28 P. 425; Cole v. Fox, 13 Idaho 123, 88 P. 561; Melquist v. Board of Commrs., 45 Idaho 296, 261 P. 774; Caldwell v. Evans, ante, p. 342, 275 P. 779.) The appeal is dismissed.

Givens, T. Bailey Lee, Wm. E. Lee and Varian, JJ., concur.