Pence v. Lemp

• Decision Date: 13 December 1895
• Citation: 43 P. 75,4 Idaho 526
• Parties: PENCE v. LEMP
• Court: Idaho Supreme Court

43 P. 75

4 Idaho 526

PENCE v. LEMP

Supreme Court of Idaho

December 13, 1895

PRACTICE-DISMISSAL OF APPEAL.-Where the transcript fails to show a compliance with the provisions of the statute or the rules of this court in the matter of appeals, the appeal will be dismissed.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Motion dismissed, with costs.

J. H. Richards, O. E. Jackson, J. R. Wester, and Hawley & Puckett, for Appellant.

No brief filed.

George H. Stewart and W. E. Borah, for Respondent.

No brief filed.

HUSTON, J. Morgan, C. J., and Sullivan, J., concur.

OPINION

HUSTON, J.

This is a motion to dismiss the appeal. The grounds upon which the motion is based are numerous, and, we think, in every instance well taken. In fact, there seems to have been, either through negligence or misapprehension, a complete abnegation, in the taking of this appeal, not only of the rules of this court, but of the provisions of the statutes. It appears from the record that there was never any engrossment of the statement, or settlement thereof. There appears in the record the following: "The foregoing statement on motion for a new trial is hereby settled and allowed, and ordered filed. [Signed] E. Nugent, Judge." This appears at the end of some thirty-seven pages of "proposed amendments to the statement of plaintiff on motion for a new trial," which proposed amendments are entirely disconnected from what purports to be the "statement of appellant on motion for a new trial." What was, or was intended to be, settled by the said indorsement by the district judge? God and himself may know; but neither has, either by endowing us with retrospective vision, or enlightening us through the record, given this court any basis for an opinion therein. The notice of appeal was filed and served January 11, 1895. The transcript was filed October 12, 1895. Rule 27 requires transcript to be filed within sixty days after appeal is perfected. This title may be extended by any justice of this court upon proper application in proper time. No application for an extension of time was ever made in this case. If there was ever a bona fide intention to take an appeal in this case, it has most signally failed. The motion to dismiss is allowed, with costs.

Morgan, C. J., and Sullivan, J., concur.