Myers v. Harvey

• Decision Date: 21 October 1924
• Citation: 229 P. 1112,39 Idaho 724
• Parties: SARAH RAY MYERS, Respondent, v. W. J. HARVEY, Administrator of the Estate of NELLIE RAY BURBANK, Deceased, Appellant
• Court: Idaho Supreme Court

229 P. 1112

39 Idaho 724

SARAH RAY MYERS, Respondent, v. W. J. HARVEY, Administrator of the Estate of NELLIE RAY BURBANK, Deceased, Appellant

Supreme Court of Idaho

October 21, 1924

APPEAL-MOTION TO DISMISS-FILING NOTICE-TIME FIXED BY STATUTE-LAST DAY A HOLIDAY-FILING ON NEXT DAY-FILING UNDERTAKING-TIME FIXED BY STATUTE-JURISDICTION.

1. When the last day to perform an act required by law is a holiday performance on the next day which is not a holiday suffices.

2. The filing of an undertaking on appeal within the time required by statute is jurisdictional.

3. Failure to file an undertaking on appeal within the time fixed by statute is ground for dismissing the appeal, when the undertaking is not waived.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.

Action to recover reasonable value of services. Motion to dismiss appeal. Appeal dismissed.

Appeal dismissed. The motion granted, with costs to respondent.

Peterson & Coffin, for Appellant.

The notice of appeal and undertaking on appeal were served and filed in time. (Jenness v. Bowen, 77 Cal. 310, 19 P. 522; Robinson v. Templar Lodge, 114 Cal. 41, 45 P. 998; City of Spokane Falls v. Browne, 3 Wash. 84, 27 P 1077.)

Stevens & Downing and Lockhart & Lockhart, for Respondent.

Appeal was not perfected in the time prescribed by sec. 7152, C. S. (Glenn v. Aultman & Taylor M. Co., 30 Idaho 719 167 P. 1163; Mills v. Board of County Commrs., 35 Idaho 47, 204 P. 876; Chapman v. Boehm, 27 Idaho 150, 147 P. 289; Continental & Commercial etc. Bank v Werner, 36 Idaho 601, 215 P. 458; Reberger v. Johanson, 38 Idaho 618, 223 P. 1079.)

The undertaking on appeal was not filed within the time prescribed by C. S., sec. 7153.

The filing of the notice of appeal and undertaking within the statutory time are jurisdictional requirements. (Kimzey v. Highland Livestock Co., 37 Idaho 9, 214 P. 750; Woodmansee etc. Co. v. Woodmansee, 31 Idaho 747, 176 P. 148; Cole v. Fox, 13 Idaho 123, 88 P. 561; Haas v. Teters, 17 Idaho 550, 106 P. 305; Hattabaugh v. Vollmer, 5 Idaho 23, 46 P. 831; Brown v. Hanley, 3 Idaho 219, 28 P. 425; Kingsbury v. Lee, 36 Idaho 447, 211 P. 552.)

MCCARTHY, C. J. Budge, Dunn, William A. Lee and Wm. E. Lee, JJ., concur.

OPINION

MCCARTHY, C. J.

Respondent moves to dismiss the appeal on the following grounds: (1) that it was not perfected within the time prescribed by C. S., sec. 7152; (2) that the undertaking was not filed within the time prescribed by C. S., sec. 7153. C. S., sec. 7152, provides that an appeal must be taken within 90 days from the entry of judgment. This means that the notice of appeal must be filed within 90 days. Sec. 7153 provides that within five days after service of the notice of appeal an undertaking must be filed. In this case judgment was entered June 12, 1922. Notice of appeal was served Sept. 9, but filed Sept. 11. Undertaking on appeal was filed Sept. 16. C. S., sec. 9451, reads:

"The time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last is a holiday, and then it is also excluded."

Sunday is a holiday within the meaning of the statutes. (C. S., sec. 9450.) The notice of appeal was served on the 89th day, but filed on the 91st day. However, the 90th day, Sept. 10th, was Sunday. Therefore the filing of the notice of appeal on Sept. 11th was timely. (C. S., sec. 9451, supra.)

Referring now to the second ground of the motion, the notice of appeal was served on Sept. 9th, but the undertaking was not filed until Sept. 16th. C. S., sec. 7153, provides:

" . . . . but the 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, as hereinafter provided, or the undertaking be waived by the adverse party in writing."

The filing of the undertaking on appeal is jurisdictional as well as the filing of the notice. Since the undertaking in this case was not filed within five days after service of the notice, and there was no waiver, the second ground of the motion to dismiss is well taken and the appeal must be dismissed. To this effect, see Brown v. Hanley, 3 Idaho 219, 28 P. 425; Cole v. Fox, 13 Idaho 123, 88 P. 561; Haas v. Teters, 17 Idaho 550, 106 P. 305; Woodmansee & Webster Co. v. Woodmansee, 31 Idaho 747, 176 P. 148; Kingsbury v. Lee, 36 Idaho 447, 211 P. 552; Kimzey v. Highland Livestock etc. Co., 37 Idaho 9, 214 P. 750. In People v. Hunt, 1 Idaho 371 the court said that the undertaking must be filed within five days after the filing of the notice of appeal, citing the Civil Practice Act, sec. 296, passed by the first session of the legislature in 1864. It provided expressly that the undertaking shall be filed within five days after the notice of...