241 P. 1020 | Idaho | 1925
Lead Opinion
Judgment entered on a verdict December 28, 1922, in favor of respondents was vacated by order of the trial judge March 22, 1923. An appeal taken from that order, Boam v. Sewell,
From that judgment, so entered pursuant to saidremittitur on March 25, 1925, the appellant sought to appeal, May 18, 1925.
In Miller v. Prout,
Appellant had a right to appeal or move for a new trial before or at the time he moved to set aside the verdict. On such motion he might have secured a new trial or, on appeal from a denial thereof, have had it determined that he was entitled to one. He chose not to do this but to make a motion, unfounded and ungrounded in the statute, which proved on appeal to have been erroneous. In the meantime, his time to appeal from the judgment expired, and he cannot now appeal more than ninety days after the rendition of the original judgment. This is especially true considering the record in this case, that from the date of entry of the judgment, December 28, 1922, until March 22, 1923, a period *722 of eighty-four days, he did not appeal from the judgment which he concedes was then in existence; nor when theremittitur went down from this court on March 25, 1925, did the appellant attempt to appeal from such judgment until May 18, 1925, a further period of fifty-four days, during all of which time, even on appellant's contention, the judgment was in effect. In other words, having exhausted eighty-four days out of ninety days without appealing, he should be willing to concede that he had but six days left after the remittitur was lodged in the lower court in which to appeal.
This court has no jurisdiction of the appeal and it should therefore be dismissed, and it is so ordered. Costs awarded to respondents.
William A. Lee, C.J., and Taylor, J., concur.
Budge, J., took no part in the opinion.
Dissenting Opinion
On December 14, 1922, a verdict was rendered in favor of respondent. Judgment was not entered within the twenty-four hour period (C. S., sec. 6895), for the reason that the court reserved the matter for further argument. The judgment appears in full in the transcript and bears date "Done in open court, this 25th day of December, 1922. Ed. L. Bryan, District Judge." The only notation by the clerk is: "Offered for filing 12-15-22. Rose Edwards, Clerk, by B.L. Newell, Deputy." The day after the rendition of the verdict, the judgment, not yet signed, was presented to the clerk for filing; and, doubtless because the judgment had not then been signed by the judge, the clerk did not file it, but made the above notation, "offered for filing." It appears from the judgment that it was not signed by the judge until ten days after it had been offered for filing. After the judgment was signed by the judge, it does not appear that, according to C. S., sec. 6899, it was ever "deposited in the office of the clerk of the court for entry" or that the clerk ever indorsed "upon such judgment the date of the filing *723 of the same under or following the word 'entered.'" The judgment does not show that it was filed for entry or entered prior to the going down of the remittitur, referred to in the majority opinion, on March 22, 1925. Conceding that it was then duly entered, as the majority opinion says it was, the notice of appeal was filed on May 18, 1925, within ninety days of the entry of the judgment. This court, therefore, has jurisdiction to hear and determine the matter, and the appeal should not be dismissed. The fact that this judgment had never been entered was not brought to our notice when the case was here before. We ordered the judgment "reinstated," which, according to the Standard Dictionary, means restored to its former station. The judgment had not been deposited for entry or filed or entered, but had merely been signed by the trial judge. The fact that counsel recited in his brief that the judgment had been entered is of no consequence. The jurisdiction of this court to hear and determine a cause is not controlled by the views of counsel.
