Taylor v. McCormick

• Decision Date: 21 February 1901
• Citation: 64 P. 239,7 Idaho 524
• Parties: TAYLOR v. McCORMICK
• Court: Idaho Supreme Court

64 P. 239

7 Idaho 524

TAYLOR v. McCORMICK

Supreme Court of Idaho

February 21, 1901

APPEAL-MOTION TO DISMISS-NOTICE OF APPEAL.-An attorney, duly admitted to practice in the district court, may sign notice of appeal from that court to the supreme court, and take all necessary steps to perfect such appeal, for until such appeal is perfected the case remains in the district court.

TRANSCRIPT ON APPEAL-NUMBERING LINES IN.-Paragraph 3 of rule 27 of the rules of this court provides that the cover and first page of the transcript shall contain the title of the cause in the court below, substituting for the words "plaintiff" or "defendant" the words "appellant" or "respondent," as the case may require; and that each ten lines of the transcript be numbered and there must be a substantial compliance with said provisions.

SAME-WHAT IT MUST CONTAIN.-Only such papers as are required by the statute and rules of the court should be put in the transcript.

SUFFICIENCY OF CLERK'S CERTIFICATE TO TRANSCRIPT.-When the clerk's certificate to the transcript shows that he certified a transcript composed of forty-one pages of typewritten matter, and the transcript to which said certificate is attached is composed of fifty-six pages of printed matter, the certificate is not sufficient.

NOTICE OF APPEAL WHEN SUFFICIENT.-When the notice of appeal contains the names of all the parties to the suit, naming those who appeal as defendants and cross-complainants, and the plaintiff and other defendants as the parties to whom said notice is addressed, and which gives the date of the judgment of dismissal, the notice is sufficient regardless of the fact that said notice states that the judgment is in favor of the plaintiffs, when in fact it is in favor of some of the defendants.

NOTICE OF APPEAL SERVICE OF.-In the service of the notice of appeal there must be a substantial compliance with the requirements of the statute.

BILL OF EXCEPTIONS-DEMURRER.-Under the provisions of section 4427 of the Revised Statutes, it is not necessary to have the order sustaining or overruling a demurrer embodied in a bill of exceptions to have it reviewed in appeal. If the action of the court in that regard is shown by the record and files it may be reviewed on appeal.

(Syllabus by the court.)

APPEAL from District Court, Cassia County.

Appeal dismissed without prejudice. Costs of this appeal awarded to respondents.

Samuel H. Hays, for Appellants, cites no authorities upon the matters decided by the court.

Hawley & Puckett, for Respondents, Sweetser Brothers and Pierce James B. Hitt and Raft River Land and Cattle Company.

Our first ground for dismissal is that neither the transcript nor the notice of appeal herein is signed by an attorney of this court. We urge that no person, even though he be an attorney in practice in another state, can appear as an attorney in this court without first being admitted to practice herein. (Idaho Rev. Stats., sec. 3990 et seq.; Weeks on Attorneys at Law, sec. 43, note 3; Thorn v. Lawson, 6 Tex. 240; Cobb v. Judge, 43 Mich. 289; Robb v. Smith, 4 Ill. 46.) Every court of record has the inherent power irrespective of statute, to make rules for the transaction and regulation of its business. (8 Am. & Eng. Ency. of Law, p. 29, note 5.) In this state the right of courts of record to make rules is distinctly recognized by statute. (Rev. Stats., secs. 3863, 3864.) The court, equally with suitors, is bound by its rules, and they must be construed as statutes are construed. (Hanson v. McCue, 43 Cal. 178; 3 Am. & Eng. Ency. of Law, p. 31, note 3; Thompson v. Hatch, 3 Pick. 512; Treishel v. McGill, 28 Ill.App. 28.) Where the transcript fails to show a compliance with the statutes of rules of this court in the matter of appeals, the appeal will be dismissed. (Pence v. Lemp, 4 Idaho 526, 43 P. 75; Hattabaugh v. Vollmer, 5 Idaho 23, 46 P. 831; Penny v. Nez Perces Co., 4 Idaho 642, 43 P. 570.) The next complaint we make in regard to the transcript is failure to comply with paragraph 5 of said rule 27, by the insertion in the transcript of the summons, affidavit of service of summons, original answer and cross-complaint, and dismissal of action and bill of exceptions in a former appeal herein, together with the remittitur of this court and what is called a "Decree of Dismissal." These several documents, we urge, are not properly a part of the transcript, and not part of the judgment-roll under section 4456 of the Revised Statutes. The notice of appeal is deficient also in not being directed to the adverse parties, so far as the other defendants are concerned as defendants in the action. (Neppach v. Jordan, 13 Ore. 246, 10 P. 341.)

SULLIVAN, J. Quarles, C. J., concurs. Stockslager, J., took no part in the hearing or decision of the case.

OPINION

SULLIVAN, J.

This suit was brought by Thomas Taylor and C. S. Hadfield against R. C. McCormick and twenty-one others to determine and settle plaintiffs' priority to the use of the waters of Raft river. The defendants answered, and certain of them filed cross-complaints, and asked for affirmative relief against the plaintiffs and certain of the defendants. The plaintiffs were nonsuited. Thereupon, on motion of some of the defendants, the cross-complaints of the other defendants were dismissed. From the judgment of dismissal an appeal was taken to this court. This court reversed said judgment, and held that the cross-complainants should have been heard upon their cross-complaints against the other defendants. (See Taylor v. Bartholomew, 6 Idaho 500, 56 P. 325.) The cause was remanded and tried, and resulted in a judgment of dismissal, and this appeal is from that judgment.

Counsel for respondents moved to dismiss the appeal on the following grounds, to wit:

1. That neither the transcript nor notice of appeal is signed by an attorney of this court. The transcript is not required to be signed at all. The notice of appeal is signed by O. R. Hale, an attorney duly admitted to practice in the district court in which this action was tried, and as such attorney he could legally sign the notice of appeal, and could take all steps necessary to perfect an appeal to this court; for, until the appeal was perfected, the case was in the trial court.

2. That the transcript does not comply in a number of particulars (which are pointed out) with the requirements of paragraph 3 of rule 27 of the rules of this court. (32 P. x.) Said paragraph requires the cover and first page of the transcript (among other things) to contain the title of the cause in the court below, substituting for the words "plaintiff" or "defendant" the words "appellant" or "respondent," as the case may require; also the names of counsel for appellant and respondent. Those requirements are not complied with in any particular. From the cover and first page it cannot be ascertained who are appellants or respondents, nor who are the attorneys for appellants or respondents. On the cover we find the names of seven attorneys marked "attorneys for defendants." On the oral hearing of the case this court was informed that some of the attorneys marked for the defendants were for the appellants and some for the respondents. Said paragraph also require that the papers making up the transcript must be chronologically inserted, as indicated by the date of the filing, which was not done. It also requires that each ten lines of the transcript be numbered on the left margin of the page from the commencement to the end. Each paper composing the transcript is numbered, beginning with the number ten and we have as many...