Moe v. Harger
| Decision Date | 15 June 1904 |
| Citation | 77 P. 645,10 Idaho 194 |
| Parties | MOE v. HARGER |
| Court | Idaho Supreme Court |
APPEALS-WHEN WILL BE DISMISSED-JURISDICTIONAL QUESTION.
1. An appeal is not taken until the notice thereof is filed and served, both of which acts must be done within the statutory time.
2. The taking of an appeal is a jurisdictional question, and the court has no power to extend the time therefor, or to cure any defect therein.
3. On an appeal from the judgment, where the same has not been taken within sixty days after the rendition thereof, the appellate court cannot examine the evidence for the purpose of ascertaining whether or not it supports the decision or verdict.
(Syllabus by the court.)
APPEAL from District Court in and for Custer County. Honorable K. I Perky, Judge.
From a judgment in favor of William Boone, respondent, and an order refusing a new trial, J. H. Baxter appeals. Appeal from order denying new trial dismissed and judgment affirmed.
Judgment affirmed, with costs to respondent.
Hawley Puckett & Hawley, for Appellant Baxter, cite no authorities upon the points decided by the court.
N. H Clark, for Respondent Boone, cites no authorities.
AILSHIE, J. Stockslager, J., concurs. Sullivan, C. J., did not sit at the hearing and took no part in the decision.
Counsel for respondent has moved for a dismissal of the appeal from the order denying the motion for a new trial on numerous grounds, the principal of which is the third: "That the appeal from the order overruling appellant's motion for a new trial was not filed within sixty days after said order was filed for record, said order having been filed September 29, 1903, and the notice of appeal filed December 4, 1903." The notice of appeal having been filed more than sixty days after the filing of the order refusing a new trial, this court has not acquired jurisdiction to consider such appeal.
Under subdivision 3 of section 4807, Revised Statutes, an appeal from an order granting or refusing a new trial must be taken "within sixty days after the order . . . . is made on the minutes of the court or filed with the clerk."
This is a jurisdictional question and the court has no power to extend the time or cure the defect. On this question there is a unanimity of opinion among the courts. The notice of appeal appears to have been prepared at Boise by appellant's counsel on the sixtieth day and mailed on the same day to the clerk of the district court at...
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... ... support any error assigned by the appellants, for the reason ... that the appeal herein was not taken within sixty days after ... the rendition of the judgment and decree appealed from. (Rev ... Stats. 1887, sec. 4807; Sess. Laws 1899, p. 273; Moe v ... Harger, 10 Idaho 194, 196, 77 P. 645; Cunningham v ... Stoner, 10 Idaho 557, 79 P. 228; Mahoney v. Board of ... Commrs., 8 Idaho 377, 69 P. 108; Brady v ... Linehan, 5 Idaho 738, 51 P. 761; Young v ... Tiner, 4 Idaho 274, 275, 38 P. 697; Holt v. Spokane etc ... Ry. Co., 3 Idaho 703, 35 ... ...
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... ... Under ... subdivision 3, section 4807, Revised Statutes, the appeal ... from the order granting or refusing a new trial must be taken ... within sixty days after the order is entered on the minutes ... of the court, or filed with the clerk. (Moe v ... Harger, 10 Idaho 194, 77 P. 645; Cunningham v ... Stoner, 10 Idaho 549, 79 P. 228.) ... That ... the verdict is against the law, and that the judgment is ... against law, are matters which cannot be reviewed by this ... court at this time. (Young v. Tiner, 4 Idaho 275, ... 38 P. 697; ... ...