Reynolds v. Corbus

• Decision Date: 07 February 1901
• Parties: REYNOLDS v. CORBUS
• Court: Idaho Supreme Court

63 P. 884

7 Idaho 481

REYNOLDS v. CORBUS

Supreme Court of Idaho

February 7, 1901

APPEAL from District Court, Ada County.

Affirmed. Costs of this appeal awarded to the respondent.

John J Blake, for Appellants.

Section 4838 of the Revised Statutes of Idaho among other things provides that "the appeal is taken by filing a notice of appeal with the justice or judge and serving a copy on the adverse party." The Encyclopedia of Pleading and Practice, which is recognized by both bench and bar as a standard work, states the rule as follows: "Where statutes require the notice of appeal to be filed, it is generally held that it must be filed before or contemporaneously with the service of the notice. Otherwise the service of the copy of the notice of appeal is not founded upon the filed original and is consequently void." (2 Ency. of Pl. & Pr. 229; Slocum v. Slocum, 1 Idaho 589; Graves v. Tallman, 8 Nev. 178; Lyon Co. v. Washoe Co., 8 Nev. 177; Johnson v. Badger Mill Co., 12 Nev. 261; Courtright v. Berkins, 2 Mont. 405; Daniels v. Daniels, 9 Colo. 133, 10 P. 657; Buffendeau v. Edwinson, 24 Cal. 94; Hastings v. Halleck, 10 Cal. 31; Moulton v. Ellmaker, 30 Cal. 527; People v. Ahyute, 56 Cal. 120; Erickson v. Erickson. 11 Wash. 76, 39 P. 241.) The phraseology of the statute admits of but one interpretation, and that is that the filing must precede the service. (Daniels v. Daniels, 9 Colo. 133, 10 P. 657.)

Brown & Cahalan, for Respondent.

The case of Slocum v. Slocum, 1 Idaho 589, is not applicable, as that decision was made upon a statute which provides for appeals from the district to the supreme court. (2d Ter. Sess. Laws, p. 134, sec. 285.) It is the settled law of this state that, to effect an appeal from a probate or justice's court to the district court, as provided by section 4838, Revised Statutes of Idaho three things only are requisite, to wit: The filing of a notice of appeal with the magistrate, service of a copy of the notice upon the adverse party, and filing of an undertaking within thirty days after the rendition of the judgment, and if these things are done, the appellate court has jurisdiction of the case; and the mere order in which those things were done is immaterial. (Salt Lake Brewing Co. v. Gilman, 2 Idaho 195, 10 P. 32; Coker v. Superior Court, 58 Cal. 178; Hall v. Superior Court, 68 Cal. 25, 8 P. 509; Hall v. Superior Court, 71 Cal. 550, 12 P. 672; McCracken v. Superior Court, 86 Cal. 75, 24 P. 845; Moffat v. Greenwalt, 90 Cal. 371, 27 P. 296; Sadler v. Niesz, 5 Wash. 182, 31 P. 631, 1030; Knight v. Martin, 128 Cal. 245, 60 P. 849.) A party is not entitled to a continuance unless he shows that he used reasonable diligence to procure the testimony, and also that he used the necessary means therefor. (Tompkins v. Montgomery, 123 Cal. 222, 55 P. 997.) In the case at bar there was no subpoena and no commission asked for or issued. (Alvord v. United States, 1 Idaho 587.) A mistaken advice of counsel to his client, not to prepare for trial is no ground for a continuance. (Musgrove v. Perkins, 9 Cal. 212; Long v. Huggins, 72 Ga. 777.) The purely voluntary absence of a party will not justify a continuance on his behalf. (4 Ency. of Pl. & Pr., pp. 542, 842; note 2; Wilkinson v. Parot, 32 Cal. 103; Culley v. Walkeen, 80 Mich. 443, 35 N.W. 368.) Courts of review have uniformly refused to disturb a ruling on a motion for continuance, unless it is shown that the discretion of the court was abused and the ruling arbitrary. (Herron v. Jury, 1 Idaho 165; Cox v. N.W. S. Co., 1 Idaho 381; People v. Walter; 1 Idaho 388; Musgrove v. Perkins, 9 Cal. 212.)

SULLIVAN, J. Quarles, C. J., and Stockslager, J., concur.

OPINION

SULLIVAN, J.

This action was brought in the probate court of Ada county to recover $ 426 damages for an alleged violation of a contract, and costs of suit. Judgment was rendered in favor of plaintiffs for said sum. An appeal was taken from that judgment to the district court. The appeal was taken as follows: On the second day of May, 1900, the defendant served on the attorney for the plaintiffs a copy of the notice of appeal, and on the third day of May, 1900, the notice of appeal, with a proper undertaking on appeal was filed in said probate court. Thereafter counsel for plaintiffs appeared in the district court and moved to dismiss the appeal on the ground that the court had no jurisdiction to hear the same, for the reason that no copy of the notice of appeal had been served on the plaintiffs, or either of them, or on their attorney. Said motion was opposed by the affidavit of counsel for the defendant, which affidavit showed that a copy of the notice of appeal had been served on the date above stated. The court denied the motion to dismiss, and set the case for trial. Four days before the time set for trial, counsel for plaintiffs moved for a continuance. Said motion was denied, and the cause, coming on for trial, was dismissed for want of prosecution, from which judgment of dismissal this appeal was taken.

Two errors are assigned. The first is that the court erred in overruling the motion of the plaintiffs (who are appellants here) to dismiss said appeal on the ground that a copy of the notice of appeal had not been served. This contention arises over that part of section 4838 of the Revised Statutes, which provides as follows: "The appeal is taken by filing a notice of appeal with the justice, or judge, and serving a copy on the adverse party." It is contended by counsel for appellants that said provision of the statute requires the filing of the notice of appeal to precede the service of a copy, or that the act of filing and serving must be contemporaneous. It is also contended that the phraseology of the statute admits of but one interpretation, and that is that the filing must precede the service. In support of this contention counsel cites Slocum v. Slocum, 1 Idaho 589, and several other authorities. In that case the court construed section 285 of the practice act of 1864. (See 2d Ter. Sess. Laws, p. 134.) To avoid the effect of that decision, said section was thereafter amended by adding thereto, among other things, the following: "The order of service is immaterial," etc. (See Rev. Stats sec. 4808.) Said section, however, provides the manner or method of taking appeals from the district court to the supreme court, while the section under consideration provides the manner of taking appeals from the probate or justice's court to the district court; and it is contended that, as the provisions of said sections are substantially the same, they must be construed to mean the same. We are unable to agree with counsel in that contention. We think that construction most technical. The statute does not declare in specific terms the order in which the several acts required to be done in order to perfect an appeal must be done. Said section 4838 provides that an appeal may be taken to the district court within thirty days after the rendition of judgment, and that the appeal is taken by filing a notice of appeal with the justice or judge, and serving a copy on the adverse party. Said provisions require two acts to be done, to wit, the filing of the notice and the serving of a copy on the adverse party; but they do not declare which must be done first, unless they be construed to mean that the act first mentioned must be done first. This question was passed upon by our territorial supreme court in Brewing Co. v. Gillman, 2 Idaho 195, 10 P. 32. While the exact question involved in the case at bar was not one involved in that case, it was a similar one, and...