Thompson v. Harris
| Decision Date | 06 February 1917 |
| Citation | 30 Idaho 109,163 P. 611 |
| Parties | W. C. THOMPSON, Appellant, v. JOHN V. HARRIS and ANNA B. HARRIS, Husband and Wife, Respondents |
| Court | Idaho Supreme Court |
APPEAL - TIME FOR TAKING - STATUTORY PROVISIONS - STRICT COMPLIANCE.
1. Where a judgment was entered on the 3d day of December, 1913 and no appeal was taken therefrom within sixty days from the entry thereof, under the provisions of subd. 1, sec. 4807 Rev. Codes, as amended by the Sess. Laws 1911, p. 367, which was the law in force at the date of the rendition and entry of said judgment, an appeal taken from said judgment on December 1, 1914, is too late to have said judgment reviewed on appeal, this court being without jurisdiction.
2 Subd. 2, sec. 4807, Rev. Codes, as amended, supra, provides an appeal may be taken to the supreme court from a district court, from an order granting or refusing a new trial, within thirty days after the order is made and entered on the minutes of the court or filed with the clerk. Where an order denying a new trial was made on the 16th day of December 1913, and no appeal was taken therefrom within thirty days from the entry thereof, the same is subject to dismissal.
APPEAL from the District Court of the Sixth Judicial District, for Bingham County. Hon. J. M. Stevens, Judge.
Action to foreclose mechanic's lien. Judgment for defendants and plaintiff appeals. Dismissed.
Costs awarded to respondents.
Wm. A. Beakley, for Appellant, cites no authorities.
C. S. Beebe, for Respondents.
Record on appeal must affirmatively show that appellant has complied with the law relative to appeals to give the court jurisdiction. (Anderson v. Knott, 1 Idaho 626.)
Where record on appeal fails to show a compliance with the statute or rules of court, appeal will be dismissed. (Pence v. Lemp, 4 Idaho 526, 43 P. 75; Penny v. Nez Perce Co., 4 Idaho 642, 43 P. 570.)
This is an appeal from a judgment, and from an order denying a motion for a new trial. The judgment was rendered and entered on the 3d day of December, 1913, and the motion for a new trial was denied on the 1st day of December, 1914. The notice of appeal and undertaking on appeal were both filed on the 1st day of December, 1914, the notice being served on counsel for appellant some time in December, 1914, the exact date of service not appearing thereon.
Sec. 4807, Rev. Codes, Sess. Laws 1911, p. 367, which was the law in force at the date of the rendition of the judgment in this case and the making of the order denying appellant's motion for a new trial, fixes the time within which an appeal may be taken from a final judgment in an action commenced in the court in which the same was rendered at sixty days after the entry of such judgment; and from an order granting or refusing a new trial, within thirty days after the order is made and entered on the minutes of the court or filed with the clerk.
Practically one year elapsed after the entry of the judgment before the notice or undertaking on appeal was filed with the clerk of the district court, which under the statutory provisions above...
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