Robinson v. St. Maries Lumber Co.

• Decision Date: 12 January 1920
• Citation: Robinson v. St. Maries Lumber Co., 32 Idaho 651, 186 P. 923 (Idaho 1920)
• Parties: FRANK ROBINSON et al., Respondents, v. ST. MARIES LUMBER COMPANY, a Corporation, and G. A. BRANSON, Appellants
• Court: Idaho Supreme Court

186 P. 923

32 Idaho 651

FRANK ROBINSON et al., Respondents, v. ST. MARIES LUMBER COMPANY, a Corporation, and G. A. BRANSON, Appellants

Supreme Court of Idaho

January 12, 1920

APPEAL AND ERROR-MOTION TO DISMISS-STRIKING TRANSCRIPT FROM THE RECORD.

1. The signature of an attorney to a notice of appeal may be affixed thereto by another person duly authorized so to do.

2. A notice of appeal from which the identity of the judgment appealed from can be determined is sufficiently definite in that respect.

3. Where an undertaking for costs on appeal is not filed within five days after the filing of the notice of appeal, the appeal is ineffectual for any purpose, and is not a bar to another appeal.

4. An undertaking on appeal is sufficient where it is shown that it was filed simultaneously with the notice of appeal, although it appears to have been signed on a date previous thereto but after the judgment or order appealed from had been made and entered.

5. A respondent will be held to have waived the objection that the reporter's transcript of the testimony was not lodged within the time prescribed by the order of the trial judge or an extension thereof, by affirmative action on his part indicating consent to its settlement or use thereof for any purpose after settlement.

6. The amendments to a reporter's transcript may be incorporated therein by a reference, in the court's order settling the transcript, to a stipulation of the parties designating the amendments, where the proposed amendments are easily identified, in the absence of a statute or rule of court requiring that the corrections be made in the transcript itself before settlement.

APPEAL from the District Court of the Eighth Judicial District, for Benewah County. Hon. R. N. Dunn, Judge.

Motions to dismiss appeal and strike transcript. Denied.

Motions to dismiss the appeal and strike the transcript denied.

Cannon & Ferris, Wm. D. Keeton and J. B. Hogan, for Appellant.

The respondents by signing the stipulation shown in the record and agreeing that the reporter's transcript might be settled and allowed with their express consent have waived and are estopped to now make any objection. (Kelley v. Clark, 21 Idaho 231, 121 P. 95; Stufflebeam v. Montgomery, 3 Idaho 20, 26 P. 125.)

No provision is made in the California statute for extensions by stipulation or agreement, and yet the supreme court of California has uniformly held that failure to object or a stipulation eliminates any objection which might otherwise be urged with reference to the service, filing or settlement of a bill of exceptions. (Slye v. Hunt, 29 Cal.App. 117, 154 P. 607; Hicks v. Masten, 101 Cal. 651, 36 P. 130; Horton v. Jacks, 115 Cal. 29, 46 P. 920; O'Brien v. O'Brien, 124 Cal. 422, 57 P. 225; Kramm v. Stockton Elec. R. R. Co., 22 Cal.App. 737, 136 P. 523; Simpson v. Budd, 91 Cal. 488, 27 P. 758; Cheney v. Cooper, 14 Neb. 413, 16 N.W. 433; Thompson v. Missouri P. Ry. Co., 50 Neb. 329, 69 N.W. 1119; Nash v. Costello, 50 Neb. 325, 69 N.W. 969; Omaha & N.W. Ry. Co. v. Redick, 14 Neb. 55, 14 N.W. 665; Loeff v. Taussing, 102 Ill.App. 398; Hawes v. People, 129 Ill. 123, 128, 21 N.E. 777; Williams v. United States Fidelity & Guaranty Co., 105 Md. 490, 66 A. 495; 4 C. J. 61, 62, 259; 4 Standard Ency. of Procedure, 337; Sorg v. Wells, 31 S.D. 432, 141 N.W. 384; Drake v. Dodsworth, 4 Kan. 159.)

All of the parties, including the trial court, understood from the stipulation and the trial court's certificate that the errors pointed out in the stipulation were deemed corrected pursuant to the stipulation. The statute or the rules of this court nowhere refer to any engrossment of a reporter's transcript. Where a large number of amendments and additional matter to the reporter's transcript was served and filed, it was not necessary that the statement be engrossed. (Shumake v. Shumake, 17 Idaho 649, 107 P. 42; Weems v. McDavitt, 49 Kan. 260, 30 P. 481.)

The bond in contemplation of law is executed at the time of its delivery, it not being effective for any purpose until its delivery. (Zienke v. Northern P. Ry. Co., 7 Idaho 746, 65 P. 431; Atchison etc. R. Co. v. Baker (Ind. Ter.), 104 S.W. 1182, 1193; State v. Alta Silver Min. Co., 24 Nev. 230, 51 P. 982; James v. Woods, 65 Miss. 528, 531, 5 So. 106; Chataugay Ore & Iron Co. v. Blake, 35 F. 804; Dore v. Covey, 13 Cal. 502; 1 Ency. of Pl. & Pr. 977; Covert v. Shirk, 58 Ind. 264; Byers v. Cook, 13 Ore. 397, 10 P. 417; Dahl v. Tibbals, 5 Wash. 259, 31 P. 868; 3 C. J. 1299; Paul v. Cragnaz, 25 Nev. 293, 59 P. 857, 60 P. 983, 47 L. R. A. 540; Stackpole v. Hermann, 126 Cal. 465, 58 P. 935.)

McFarland & McFarland, for Respondents.

No undertaking on appeal was filed. (Weiser River Fruit Assn. v. Feltham, 31 Idaho 633, 175 P. 583.)

The notice of appeal was not signed by J. B. Hogan, Branson's attorney, but Hogan authorized Cannon & Ferris to attach his name to the notice. Our practice does not contemplate that appeals may be taken in that way. (Poppleton v. Nelson, 10 Ore. 437; Prescott v. Salthouse, 53 Cal. 221.)

The pretended proof of service shows that it was not attempted to be served until too late. (Boise-Payette Lumber Co. v. McCarthy, 31 Idaho 305, 170 P. 920.) Failure to make such service as required by the statute divests this court of jurisdiction to entertain the appeal. (Bohannon Dredging Co. v. England, 30 Idaho 721, 168 P. 12.)

The order of the judge settling the transcript and the stipulation clearly show that the transcript is not a true and correct transcript of the evidence and proceedings had upon the trial of the case. A stipulation cannot take the place of the transcript required by statute. (Hansen v. Boise-Payette Lbr. Co., 31 Idaho 600, 174 P. 703.)

A reporter's transcript serves the same purpose and the same office as a statement of the case on motion for a new trial or bill of exceptions, and where amendments are offered and allowed to the transcript, such transcript as amended must be engrossed before the court will consider the same. (Hattabaugh v. Vollmer, 5 Idaho 23, 46 P. 831; Crowley v. Croesus G. & C. Min. Co., 12 Idaho 530, 86 P. 536.)

RICE, J. Morgan, C. J., and Budge, J., concur.

OPINION

RICE, J.

Respondents move to dismiss the appeal of G. A. Branson upon the ground that the notice of appeal was not signed by Branson or by J. B. Hogan, his attorney, but that the name of J. B. Hogan was signed to the same by Cannon & Ferris, or one of them, and that Cannon & Ferris were not resident attorneys of the state of Idaho.

This contention cannot be sustained. It was shown by affidavit that Hogan authorized his name to be signed to the notice of appeal by Cannon & Ferris. The signature of Hogan to the notice of appeal, made by his authority, is sufficient. (Woods v. Walsh, 7 N.D. 376, 75 N.W. 767.)

A motion is made to dismiss the appeal upon the ground that the notice of appeal does not specify the judgment from which the appeal is taken. The notice refers to the judgment as having been signed and entered on the thirty-first day of August, 1918. The judgment contained in the transcript is dated Aug. 31, 1918, but was filed Sept. 4, 1918. It is plain that there was but one final judgment entered in the cause. The notice of appeal in this respect is sufficient to designate the judgment from which the appeal is taken. (Anderson v. Goff, 72 Cal. 65, 1 Am. St. 34, 13 P. 73; Paul v. Cragnaz, 25 Nev. 293, 59 P. 857, 60 P. 983, 47 L. R. A. 540; State v. Hanlon, 32 Ore. 95, 48 P. 353; McConnell v. Spicker, 13 S.D. 406, 83 N.W. 435.)

It is also urged that the appeal should be dismissed because a former appeal had been perfected, and that necessarily only the first appeal gives jurisdiction to this court. Upon suggestion of diminution of the record, a copy of the former notice of appeal was brought to this court, and also copy of an undertaking. These records, however, fail to show that the former appeal was perfected. It does not appear that an undertaking for costs on appeal was filed. The undertaking shown by the record was only for stay of proceedings. The first appeal, therefore, was ineffectual for any purpose (Weiser River Fruit Assn. v. Feltham, 31 Idaho 633, 175 P. 583.)

Respondents also urge as ground for dismissal that the undertaking on appeal was dated Nov. 21, 1918, and recites that it is given in consideration of an appeal already taken, while the notice of appeal was filed Nov. 23, 1918.

In Zienke v. Northern P. Ry. Co., 7 Idaho 746, 65 P. 431, it was held that an undertaking on appeal is not executed until filed with the clerk, and is sufficient where it is shown that the undertaking was filed simultaneously with the notice of appeal, although it appears to have been signed upon a date previous thereto, but after the order appealed from had been made and entered.

This ground of motion to dismiss the appeal is without merit.

Respondents also move to strike the reporter's transcript from the record, for the following reasons: (1) That the same was not lodged with the clerk of the lower court within the time provided therefor by the order of the trial court or judge, or any extension of the time granted by the judge or court; (2) that the record does not show that the reporter's transcript of the testimony was served upon respondents, or their attorney, within the time provided therefor by law; (3) that the transcript of the testimony was not settled by the trial court or judge as required by the statute.

The record shows that the order for reporter's transcript was made on April 5, 1918, and that it directed the reporter to complete and lodge his transcript of the testimony with the clerk within thirty days from the date of the order. The transcript is indorsed as lodged Oct. 15, 1918. On Nov. 22,...