Mills v. American Bonding Co.

• Decision Date: 30 July 1907
• Citation: 13 Idaho 556,91 P. 381
• Parties: J. C. MILLS, Jr., Respondent, v. AMERICAN BONDING COMPANY et al., Appellants
• Court: Idaho Supreme Court

91 P. 381

13 Idaho 556

J. C. MILLS, Jr., Respondent, v. AMERICAN BONDING COMPANY et al., Appellants

Supreme Court of Idaho

July 30, 1907

PROSECUTION ON APPEAL-BAR OF REMEDY ON APPEAL-DISMISSAL OF APPEAL.

1. Where a litigant seeks and procures a removal of a case from the state court to a federal court, and thereafter pursues his remedy in the latter court, and it is finally determined that the federal court has acted without jurisdiction and that the case has never been legally and regularly removed from the state court, and he thereafter takes up his case where he left off in the state court, the bar of the statute and rules of court limiting the time in which to pursue his remedy on appeal will be held to run against him the same as if he had never sought to prosecute his remedy in another forum.

(Syllabus by the court.)

APPEAL from District Court of Third Judicial District for Ada County. Hon. Geo. H. Stewart, Judge.

Motion to dismiss appeal on grounds that transcript has not been filed in time required by rules of court. Motion sustained and appeal dismissed.

Appeal dismissed, with costs in favor of respondent.

Morrison & Pence and Neal & Kinyon, for Appellants.

W. E Borah, H. L. Fisher and Frank J. Smith, for Respondent.

No briefs filed on point decided.

AILSHIE C. J. Sullivan, J., concurs.

OPINION

AILSHIE, C. J.

The respondent has moved for a dismissal of the appeal herein on the grounds that it has not been prosecuted with diligence and especially for the reason that the transcript has not been prepared, served and filed within sixty days after service of the notice of appeal, as provided by the rules of this court. This is a companion case to that of Finney v. American Bonding Co. et al., ante, p. 538, 13 Idaho 538, 91 P. 318, decided at this present term; the same action has been taken in this case in all respects as was taken in that case, and the appellants are guilty of the same degree of negligence, delay and laches in this case as in that one. On the authority of that case, both the original opinion and on petition for rehearing, the appeal in this case must be dismissed.

Appellants cite McIver v. Florida Central & P. R. Co., 110 Ga 223, 36 S.E. 775, 65 L. R. A. 437, as an authority in support of their contention that this court should assume jurisdiction of the appeal and hear the case on its merits. As we read that case, it does not support the position appellants are obliged to maintain here. It simply holds that where a case has been commenced in a state court and thereafter properly removed to a federal court, and the plaintiff was nonsuited or voluntarily dismissed his case in...