— Respondent moves to dismiss tbe appeal on tbe ground, among other things, that the undertaking was not filed within five days after the notice of appeal was served on the attorney for the adverse party, as provided by sec. 4808, Rev. Codes.
It appears from the record that the notice of appeal was served on the 12th day of'October, 1909, and the undertaking was not filed with the clerk of the proper court until the the 22d day of October, 1909, making ten days between the service of the notice of appeal and the filing of the undertaking. Under the provisions of said section of the statute, the undertaking must be filed within five days after the notice of appeal is served upon the adverse party or his attorney, or the appeal is ineffectual for any purpose. As the undertaking was not filed until ten days after the notice of appeal was served, the motion must be granted, and it is so ordered. (Cole v. Fox, 13 Ida. 123, 88 Pac. 561; West v. Dygert, 13 Ida. 641, 92 Pac. 753; Village of Hailey v. Riley, 13 Ida. 749, 92 Pac. 756.)
Costs are awarded to respondent.