46 P. 831 | Idaho | 1896
Lead Opinion
This is an appeal from the judgment, and the order overruling a motion for a new trial. A motion was made to dismiss the appeal on the three grounds following, to wit: 1. That no exception was saved to the order overruling the motion for a new trial; 2. That the transcript was not served on respondent in the time required by the rules of this court; 3. That the statement contained in the record is not such a one as the law requires.
As to the first ground: Section 4427 of the Revised Statutes declares that certain orders and decisions are deemed excepted to, and the order denying a new trial comes within" that class, and for that reason no formal exception is required.
As to the second ground: Paragraph 8 of rule 27 (32 Pac. xi) provides that a transcript of the record must be served upon the adverse party, and filed in this court, within sixty days after the appeal is perfected. Section 4808 of the Revised Statutes provides that “an appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered, a notice stating the appeal from the same or some specific part thereof and serving a similar notice on the adverse party or his attorney.” Said section also provides that an appeal so taken is ineffectual for any purpose unless, within five days after the filing and service of the notice of appeal, an undertaking be filed, or .a deposit of money be made, with the clerk, as thereinafter provided. From this section of the statute it will be observed that an appeal is taken by filing and serving a notice, but the appeal is'of no effect unless an
As to the third point made by the motion: Appellant prepared a proposed statement on motion for a new trial, and served it on respondent’s attorneys, whereupon they proposed twenty-one amendments thereto, which amendments were allowed by the judge. The twenty-one amendments thus allowed required the insertion of certain words, sentences, and paragraphs in various parts of the proposed statement, designating the page and line wherein such amendments were to be inserted. And, instead of engrossing the proposed statement and amendments, the amendments were simply attached to the proposed statement, and the certificate of settlement indorsed thereon. The statement, as settled, was handed to the
Rehearing
ON REHEARING.
A petition for rehearing has been filed in this case, and, ■after carefully considering the same, a rehearing is denied. It is ordered that a remittitur issue at once.