Anderson v. Knott

1 Idaho 626 | Idaho | 1876

CLARK, J.,

delivered the opinion.

Hollister, C. J., concurred.

In this case the respondents move to dismiss the appeal, on the ground that no undertaking was filed within five days after service of the notice of appeal. The notice of appeal was filed on the thirty-first day of July, 1875. On the first day of September, 1875, the undertaking for appeal was filed. The notice of appeal does not show that it had been served upon the respondents or their attorneys, or either of them.

The transcript in this case does not show that the notice of appeal had been served upon any person or persons whatever, hence we conclude that service of the same had not been made. The party moving for an appeal must show affirmatively that he has complied with the law relative to appeals in order to give this court jurisdiction. Nothing can be presumed or inferred in his favor. Section 438 of the civil practice act reads as follows, to wit: “The appeal shall be made by filing with the clerk of the court, with whom the judgment or order appealed from is entered, a notice stating tbe appeal from tbe same, or some specific part thereof, and serving a copy of tbe notice upon tbe adverse party or bis attorney. Tbe order of service is immaterial, but tbe appeal is ineffectual for any'purpose, unless, witbin five days after service of the notice of appeal, an undertaking -be filed or a deposit of money be made with tbe clerk, as hereinafter provided, or tbe undertaking be waived by tbe adverse party in writing.”

In this case there is no proof of tbe service of tbe notice of appeál, and tbe same being absolutely necessary to an appeal,-this appeal is dismissed.