90 P. 859 | Idaho | 1907
Lead Opinion
This is a motion to dismiss the appeal on three grounds, to wit: 1. That the appeal was not taken within one year from the date of the entry of judgment; 2. That no transcript was filed in said case within sixty days after notice of appeal was served; 3.- That it is manifest from the records that the appeal is frivolous and taken merely for the purpose of delay.
The judgment was filed February 18, 1905. The notice of appeal was served and filed on the seventeenth day of April, 1905, and an undertaking on appeal was filed on the nineteenth day of that month. An appeal was taken by serving notice of appeal on the adverse party, or his attorney (Rev. Stats., sec. 4808). The notice of appeal was served and filed within sixty days after the entry of judgment, and the appeal was taken within the time required by the provisions of said section 4808. The transcript in the case was filed May 25, 1907, more than two years after the notice of appeal was given. It appears from the record before us that this action was commenced in the district court of Ada county on the thirteenth day of May, 1904. It appears that three efforts were made to remove this case from the state court to the United States circuit court. It also appears that on March 16, 1905, the third attempt at removal was made and petition and bond for removal were filed on that date. Thereafter plaintiff filed his motion in the circuit court to remand the cause to the state court, which motion was denied by the judge of the circuit court on the third day of April, 1905. Thereafter, the defendant, the American Bonding Company, filed a demurrer to the complaint,, which demurrer was over
On February 23, 1905, the defendant, the American Bonding Company, gave notice of intention- to move for a new trial, and notice of appeal was served and filed on the seventeenth day of April, 1905, as above stated, and a proper bond on appeal was also filed.
After the cause had reached the United States circuit court of appeals on the motion of the plaintiff, an order was made by that court to the effect that the United States circuit court had not acquired jurisdiction of the case by said proceeding for the removal of the same. (See American Bonding Co. v. Mills, 152 Fed. 107.) And the cause was remanded to the state court. The order remanding the same was entered and filed in the state district court on March 20, 1907. It appears that after that order was made and entered in the district court, counsel for appellant then proceeded to have their transcript on appeal from the district court of Ada county to the supreme court of this state prepared, printed and filed in this court, and said transcript was filed in this court May 25, 1907. Under these facts it is contended by counsel for appellant that the motion to dismiss should not be sustained, for the reason that this case had been removed on March 16, 1905, to the circuit court of the United
It has thus been determined that said ease was not removed from the state court. It was tried by the state court. To be sure, that trial took place in opposition to the appellant’s wishes, but the .trial was had and a judgment entered against it on the seventeenth day of February, 1905. An appeal was taken on thd seventeenth day of April, 1905. The appellant let" the matter rest in that way from that date until the twenty-fifth day of May, 1907 — over two years— before his transcript was filed. While the appeal was taken within the year, the transcript was not filed for over two years after the appeal was taken. Under paragraph 9 of rule 27 of the rules of this court (32 Pac. v), the transcript must be filed within sixty days after the appeal is perfected, if no extension of time is given for that purpose, and no extension of time was applied for or given.
Under all the facts of this case, as they appear from the record, we conclude that the motion to dismiss the appeal must be sustained, and it is so ordered. Costs of this appeal are awarded to the respondent.
Rehearing
ON PETITION FOR REHEARING.
This case was dismissed on the motion of the respondent at the May, 1907, term of this court, on the ground that the transcript on appeal was not filed and served in the time provided by paragraph 9 of rule 27 of the rules of this court (32 Pac. v). The facts in the case, so far as the decision on the motion is concerned, are sufficiently stated in the opinion on the motion. (90 Pac. 859.) It is earnestly contended by counsel for the appellant that the court has misapprehended the facts and misapplied the law which ought to obtain on those facts. It is contended that during all the time that the case was pending in the United States court, that the proceedings in the state court were coram non judice and void, and counsel for appellant cite McIver v. Florida Central & P. R. Co., 110 Ga. 223, 36 S. E. 775, 65 L. R. A. 437; Kern v. Huidekoper, 103 U. S. 485, 26 L. ed. 354.
In the last, ease above cited it is held that a proper removal of the cause .from a state court to a United States court devests the state court of jurisdiction, but in the case at bar the circuit court of appeals held that the United States court had acquired no jurisdiction by the attempted removal, and hence the removal was not a proper one; aside from that, counsel for appellant appeared in the state court after the attempted removal, tried the ease there, and after judgment had been rendered against the appellant, attempted to take an appeal to this court by serving notice of appeal and filing an appeal bond, and thereafter did nothing further in the matter for about two years. They made no application to this court for an extension of time in which to serve and file their transcript on appeal. They cannot be permitted to blow both hot and cold in this matter. They contend in one breath that the state court had no jurisdiction, and again they claim that they took a valid appeal from the judg