216 P. 1035 | Idaho | 1923
— A motion is made to dismiss the appeal in this case upon two grounds: First that no notice of appeal from the judgment was ever served upon the respondents or their attorneys of record; second, that the appellant has not complied with Buie 26 of this court relative to the filing and service of the transcript on appeal.
As to the first ground: An inspection of the transcript shows that final judgment was entered in this case in favor of respondents on July 2, 1921. On August 20th thereafter counsel for appellant filed with the clerk of the court below his notice of appeal from such judgment. The record contains the following memorandum, apparently made by counsel for appellant, upon the notice of appeal:
“Copy of the above notice sent to the above attorneys and original mailed to the Clerk of said court on above date. W. A. B.”
There is no other showing that service was ever made upon the adverse parties, and counsel for respondents file affidavits in support of their motion to dismiss showing that no service of such notice of appeal was in fact ever served upon them. It is clear that appellant has not complied with C. S., sec. 7153, which requires a copy of the notice of appeal to be served “upon the adverse party or his attorney.”
As to the second point urged by respondents: The record shows that the appeal was perfected on August 20, 1921, and the praecipe for the clerk’s transcript was filed the same day. The cause was submitted upon a stipulation of facts, and no reporter’s transcript was us*ed. An affidavit by the clerk of the lower court shows that thereafter on August 22d the clerk notified counsel for appellant of the amount of.the fees required, and made a request for payment of the same on August 31st. Such fees were not in fact paid to the clerk until October 21st. The transcript was not settled by the trial court until November 28, 1921,
Buie 26 of this court, in effect at the time of the taking of this appeal (Buies adopted Dec. 27, 1919, in effect Feb. 25, 1920), provided:
“In all cases where an appeal is perfected, transcripts of the record (showing the date of filing the notice and undertaking on appeal) must be served upon the adverse party and filed in this court within sixty days after the appeal is perfected.”
Buie 28 provides:
“Upon good cause shown by affidavit, or upon stipulation of the parties that good cause exists therefor, filed with the clerk, the time limit in which a transcript may be served and filed, as set forth in Buie 26, may be extended by an order of the court or a justice thereof.”
No showing is made in the instant ease that such an order extending the time for filing and serving the transcript was obtained or asked for. An inspection of the record shows that more than sixty days elapsed between the filing of the notice of appeal and the service of the transcript upon opposing counsel.
Buie 29 provides:
“If the transcript of record is not filed within the time prescribed by Buie 26, the appeal may be dismissed. Five days notice of motion to dismiss, under this rule, accompanied by copies of all moving papers, shall be served upon the adverse party or parties.”
Such nptice is shown to' have been given, and all the formal requirements of a motion to dismiss, as set forth in Bule 30, have been complied with.
There having been a failure to comply with the statutory requirements and the rules of this court relative to appeals, and no showing of diligence having been made on the part of appellant, the appeal should be dismissed, and it is so ordered.
