Foresman v. Board of Commissioners

80 P. 1131 | Idaho | 1905

AILSHIE, J.

— When this case was called for oral argument the respondent filed and presented a motion to dismiss the appeal, on the ground that no undertaking on appeal was ever filed in the case. The appeal was originally taken from an order of the board of county commissioners of Nez Perce county, and the matter was heard in the district eourt, and the order of the board of commissioners was there affirmed, and this appeal was then taken, from the judgment of the district court affirming the order of the board of commissioners. After hearing counsel for the respective parties on this motion, the same was granted, and the appeal was dismissed. Owing to the apparent confusion among some of the prior decisions of the court on this specific question, we have thought it best to file an opinion in this case and definitely define the views of the court as to the necessity for giving an undertaking on an appeal in such case. In Great Northern Ry. Co. v. Kootenai County, 10 Idaho, 379, 78 Pac. 1078, it was held that the giving of an undertaking on appeal from an order of the board of commissioners to the district court is not jurisdictional, and that an undertaking in such case can be demanded only after the judge of the district court has made his order requiring such undertaking and fixing the- amount thereof. Upon that point there is no uncertainty in the decisions. On the question, however, as to the necessity for an undertaking upon appeal in such eases from the district court to the supreme court, there is a lack of certainty in the decisions of this court. In Ravenscroft v. Board of Commissioners, 5 Idaho, 178, 47 Pac. 942, it was suggested that the statute did not contemplate the giving of an undertaking on appeal from the board of commissioners to the district court, or on appeal from the district court to the supreme court, unless for reasons mentioned in the statute the court should make an order requiring such undertaking. In Davis v. Elmore County, 9 Idaho, 764, 75 Pac. 910, an appeal was dismissed for failure to give an undertaking, and it was there suggested that an undertaking on appeal is essential in all cases where the appeal is taken for the purpose of protecting the appellant’s individual rights. In the two latter cases, it does not appear that the court’s attention was ever called to two provisions of the statute which we think conclusive on this question, and the application of which would give a definite rule to be followed in the prosecution of appeals in such cases. Those acts were both passed in March, 1895. By the provisions of an act approved March 6, 1895 (Sess. Laws 1895, p. 52), sections 1776 to 1779, inclusive, Revised Statutes, were amended to authorize appeals from orders of a board of county commissioners, and section 1779 provided that an appeal might be prosecuted from the decision of the district court to the supreme court within five days after such decision. Thereafter, and on the ninth day of the same month, an act was approved amending section 4807, Revised Statutes, by adding thereto subdivision 4. This subdivision provides that an appeal may be taken to the supreme court from a judgment entered on an appeal from an order, decision or action of a board of county commissioners within ninety days after the entry of such judgment. From these provisions it appears that the legislature, after having provided for appeals from orders of a board of commissioners to the district court, and for appeals from judgments of the district court, rendered in such eases, 'concluded that it was necessary to extend the time for the prosecution of an appeal from the district court from five days, as provided in the original act, to ninety days; but instead of amending the original act in that respect, they added this subdivision 4 to section 4807, Revised Statutes, and thereby subjected such appeals to the provisions of .the general statutes governing appeals to the supreme court. The act of March 6, 1895, was reenacted February 14, 1899 (Sess. Laws 1899, 248), and the act of March 9, 1895, was re-enacted on the same date. Under the law as it now stands, appeals from orders of a board of county commissioners to the district court are regulated by the provisions of sections 1776 to 1779, inclusive, as amended March 6, 1895. While appeals from judgments of the district court entered on appeal from an order, decision or action of a board of county commissioners are governed by sections 4807 to 4809, being the general statutes on appeal to the supreme court. This being true, section 4808 applies and provides that an appeal shall be “ineffectual for any purpose, unless within five days after service of notice of- appeal, an undertaking be filed. ” It is therefore considered that in eases of appeals from judgments of the district court, which have been entered on appeal from an order, decision or action of a board of county commissioners, an undertaking must be given as in other cases on appeal to the supreme court. The appeal is dismissed, with costs to respondents.

Stockslager, C. J., and Sullivan, J., concur.