Sharp v. Brown

• Decision Date: 02 August 1923
• Citation: 37 Idaho 582,217 P. 593
• Parties: CLIFFORD L. SHARP, Respondent, v. ROY BROWN, Appellant
• Court: Idaho Supreme Court

217 P. 593

37 Idaho 582

CLIFFORD L. SHARP, Respondent, v. ROY BROWN, Appellant

Supreme Court of Idaho

August 2, 1923

APPEAL-DISMISSAL FOR FAILURE TO FILE TRANSCRIPT-SECOND APPEAL WHILE FIRST IS PENDING.

1. An appeal in a civil action is subject to dismissal for failure to file transcript within time limited by the rules, or an extension thereof.

2. If the first appeal, even though valid at the time the second is taken, is thereafter abandoned or allowed to lapse, if the second has been taken in good faith and within the statutory time, and respondent is not prejudiced thereby, such second appeal will not be dismissed on the ground that a valid appeal was pending at the time the second was taken.

MOTIONS to dismiss first and second appeals from same judgment. First motion granted and appeal dismissed; second motion denied.

Motion to dismiss the second appeal denied. Costs to appellant.

R. W Katerndahl and Peterson & Coffin, for Appellant, file no brief.

C. A Bandel and F. A. McCall, for Respondent.

Appeal No. 1 should be dismissed for failure to file transcript within the time prescribed by rules 26 and 28 of the supreme court. (State v. Jewett, 27 Idaho 147, 147 P. 288; Bohannon Dredging Co. v. England, 30 Idaho 721, 168 P. 12; Gates v. Todd Commercial Co., 36 Idaho 784 213 P. 1017.)

As soon as the notice of appeal is served on the adverse party and filed in the district court, such court is ousted of jurisdiction and the supreme court acquires exclusive jurisdiction of the appeal. (Richardson v. Bohney, 18 Idaho 328, 109 P. 727; Glavin v. Lane, 29 Mont. 228, 74 P. 406.)

The first appeal was still pending at the time appellant attempted to take a second appeal and his later attempt was futile and of no effect. (Hill v. Finnigan, 54 Cal. 311; DeJarnett v. Marquez, 127 Cal. 558, 60 P. 45; Klinger v. Henderson, 137 Cal. 561, 70 P. 617; Swazey v. Adair (Cal.), 23 P. 284; Brown v. Plummer, 70 Cal. 337, 11 P. 631; Schmeer v. Schmeer, 16 Ore. 243, 17 P. 864; People v. Bank of San Luis Obispo, 152 Cal. 261, 92 P. 481; Tompkins v. Montgomery, 116 Cal. 120, 47 P. 1006; Robinson v. St. Maries Lumber Co., 32 Idaho 651, 186 P. 923; State v. King, 6 S.D. 297, 60 N.W. 75.)

DUNN, J. McCarthy, William A. Lee and Wm. E. Lee, JJ., concur.

OPINION

DUNN, J.

In this case a motion to dismiss the first appeal is accompanied by a certificate from the clerk of the lower court reciting that judgment was entered against appellant on Nov. 22, 1922; that on Dec. 29, 1922, appellant filed and served notice of appeal from the judgment and filed undertaking on appeal. The motion to dismiss is based upon the ground that the transcript has not been filed in this court within the time prescribed by rules 26 and 28.

This motion was filed on April 24, 1923. More than 90 days having elapsed since the appeal was perfected, no extension of time having been applied for or granted, nor any showing of diligence submitted on behalf of appellant, the motion to dismiss the first appeal must be granted. (Blumauer-Frank Drug Co. v. First Nat. Bank, 35 Idaho 436, 206 P. 807; Lake & Co. v. Bales, 36 Idaho 142, 210 P. 396; Gates v. Todd Commercial Co., 36 Idaho 784, 213 P. 1017.)

A second appeal from the same judgment was taken on Feb. 16, 1923, as shown by the certificate of the clerk attached to motion to dismiss. The ground of this motion is "that at the time said notice of appeal and undertaking were filed and served, an appeal from the judgment was pending in this court and undetermined."

In this case there is nothing in the record to indicate that the first appeal was not a valid and existing appeal at the time the second appeal was taken. At that stage of the proceedings the time for filing transcript on the first appeal had not expired.

The only explanation of the second appeal is found in the suggestion in respondent's brief to the effect that after respondent excepted to the sufficiency of the sureties on the undertaking given by appellant, the sureties failed to justify. This explanation, however, does not show any necessity for the taking of the second appeal.

Respondent argues that after the first appeal was perfected a second appeal could not be taken because the trial court was ousted of jurisdiction, citing Richardson v. Bohney, 18 Idaho 328, 109 P. 727; Hill v. Finnigan, 54 Cal. 311; Brown v. Plummer, 70 Cal. 337, 11 P. 631, and other cases. The following statement of the California court in the case of Brown v. Plummer, supra, fairly represents the view of the court so holding:

"Where there is a good and valid appeal from a judgment of the superior court pending in the supreme court, a second appeal from the same judgment is a nullity, for the reason that after the taking of the first appeal there would be nothing in the court below from which another appeal could be taken."

We think this position is due to an erroneous view as to the effect of an appeal. While an appeal undoubtedly divests the court of jurisdiction to proceed in any manner that would affect the merits of the appeal, it does not follow that "there would be nothing in the court below from which an appeal could be taken." At most, the effect of the judgment or order appealed from is only suspended, and in certain cases recognized by C. S., sec. 7155, and other sections of the Idaho Compiled Statutes, a mere appeal does not stay an execution of the judgment appealed from. These statutory provisions completely refute the contention that simply taking an appeal wholly removes the case from the trial court.

In the case of Richardson v. Bohney, supra, the appeal was from an order of the district court. After the appeal was perfected the court amended the order appealed from. Of course it had no jurisdiction to do such a thing. If it had it would be possible for the trial court by successive amendments of judgments or orders appealed from to prevent an appellant from getting into the appellate court, for as fast as he appealed the court could substitute a new judgment or order for the one appealed from, rendering necessary a new appeal only to be superseded by another appeal.

But the situation here is not that presented by Richardson v Bohney, supra. Whether the first appeal was good or not, respondent has suffered no injury by the second, and if the first was in fact valid and the second has been taken in good faith, under the mistaken impression that the first was not valid, we think only a technical construction of the law would require...