Taylor v. McCormick

64 P. 239 | Idaho | 1901

SULLIVAN, J.

This suit was brought by Thomas Taylor and C. S. Hadfield against R. C. McCormick and twenty-one-others to determine and settle plaintiffs’ priority to the use of the waters of Raft river. The defendants answered, and certain of them filed cross-complaints, and asked for affirmative relief against the plaintiffs and certain of the defendants The plaintiffs were nonsuited. Thereupon, on motion of some of the defendants, the cross-complaints of the other defendants were dismissed. From the judgment of dismissal an appeal was taken to this court. This court reversed said judgment, and held that the cross-complainants should have been heard upon their cross-complaints against the other defendants. (See Taylor v. Bartholomew, 6 Idaho, 500, 56 Pac. 325.) The cause was remanded and tried, and resulted in a judgment of dismissal, and this appeal is from that judgment.

Counsel for respondents moved to dismiss the appeal on the following grounds, to wit:

1. That neither the transcript nor notice of appeal is signed by an attorney of this court. The transcript is not required to. be signed at all. The notice of appeal is signed by O. E. Hale, an attorney duly admitted to practice in the district court in which this action was tried, and as such attorney he could legally sign the notice of appeal, and could take all steps necessary to perfect an appeal to this court; for, until the appeal was perfected, the case was in the trial court.

2. That the transcript does not comply in a number of particulars (which are pointed out) with the requirements of paragraph 3 of rule 27 of the rules of this court. (32 Pac. x.) Said paragraph requires the cover and first page of the transcript (among other things) to contain the title of the cause in the court below, substituting for the words “plaintiff” or “defendant” the words “appellant” or “respondent,” as the ease may require; also the names of counsel for appellant and respondent. Those requirements are not complied with in any particular. From the cover and first page it cannot be ascertained who are appellants or respondents, nor who are the attorneys for appellants or respondents. On the cover we find the names of seven attorneys marked “attorneys for defendants.” On the oral hearing of the case this court was informed that some of the attorneys marked for the defendants were for the appellants and some for the respondents. Said paragraph also require that the papers making up the transcript must be chronologically inserted, as indicated by the date of the filing, which was not done. It also requires that each ten lines of the transcript be numbered on the left margin of the page from the commencement t.G the end. Each paper composing the transcript is numbered, beginning with the number ten, and we have as many number ten's in the transcript as there are documents in it. No regard whatever was had for the provisions of said paragraph of rule 27 in the printing of the transcript.

3. It is contended that a number of papers have been inserted in said transcript that are no part of the transcript on appeal in this ease. On an examination of the transcript we find that contention fully sustained. The sections of the statute upon that subject specify the papers or documents which the transcript on appeal must contain, and only those should be put into it.

4. The last document contained in the transcript is entitled '“Assignment of Error," and it is not shown that it had been filed in this ease. It evidently was inserted without being filed in the trial court.

5. That the transcript is not certified as correct either by the clerk or by the attorneys, as required by paragraph 9 of rule 27. (32 Pac. xi.) On an examination of the certificate made by the clerk, we find that he certifies in part as follows, to wit: “Do hereby certify that the hereto attached forty-one (41) pages and part of pages of typewritten matter, including title page and index, contains,” etc. The transcript in this case is composed of fiftv-six pages of printed matter, while the one certified by the clerk contained forty-one pages of typewritten matter. After the transcript is printed, if the clerk is called upon to certify it, it is his duty to compare the printed copy with the original, and, if it is correct, to certify it. His certificate to the typewritten transcript is not a sufficient certification of the printed transcript. Printers sometimes make mistakes, and it is the duty of the clerk, when called upon to certify a transcript, to see that it is correct so far as copies of the papers it contains are concerned. The certificate is not sufficient.

6. That no proper notice of appeal was filed or served in this case. The cause, so far as the plaintiffs were concerned, had been dismissed as to them, and there remained for disposition the issues made between the defendants by their cross-.complaints, and thereon the court entered a judgment of dismissal, from which judgment this appeal was intended to be taken. Said judgment of dismissal, as to the cross-action, was ’made April 20, 1900, and the notice of appeal states that certain defendants (naming them) appeal to the supreme court, .from the “decree of dismissal of cross-complaint therein, made and entered in the district court on the twenty-first ,day of April, 1900, in favor of the plaintiffs and against the said defendants in this action, and from the whole thereof.” It will .be observed that the appeal is from a judgment in favor of the “plaintiffs” and against the “defendants,” while, as a matter of fact, the contest was between defendants only, as the case had theretofore been dismissed as to the plaintiffs. The judgment was one of dismissal in favor of some of the defendants as against other of the defendants who cross-complained. While the notice of appeal is defective as to form, we do not think that defect has affected the substantial rights of the respondents. Hence, under the provisions of section 4331 of the Be-vised Statutes, that defect must be disregarded by this court.

7. It is urged that the service of the notice of appeal was fatally defective in that it was not served upon K. I. Perky or H. S. Hampton, attorneys representing certain of the defendants, or upon J. C. Bogers, attorney for the plaintiffs. It is shown by affidavit of O. E. Hale that said attorneys, Hampton and Bogers, informed him at the time he offered to serve the notice of appeal on them that they were no longer connected with said case, and requested said Hale to serve said notice upon the plaintiffs, which he did; and it is in like manner shown that said Perky did not appear for either party to said suit. An amended affidavit of service of notice of appeal has been filed in this court that cures the other defects mentioned In said motion. It evidently was an error in placing the names of said attorneys upon the cover of the brief of appellants, but, as the persons named were no longer attorneys in the case, it was not necessary to serve the notice of appeal on them.

8. The last objection made to the transcript is the failure to bring this appeal here hv hill of exceptions. It is contended that this is an appeal from a judgment of dismissal, and in that case a bill of exceptions is necessary to enable this court to review the ruling on the demurrer to the cross-complaint upon which the judgment of dismissal was based. There is nothing in this contention, as section 4437 of the Bevised 'Statutes, provides, among other things, that an order sustaining or overruling a demurrer is deemed excepted to, and need not be embodied in a bill of exceptions; but the same, appearing in the record and files, may be reviewed upon appeal as •though settled in a bill of exceptions. There must be a substantial compliance with statute and rules of this court in the preparation of the transcript on appeal, but in this case there las been such an utter disregard of those requirements that "the motion to dismiss must be sustained, and it is so ordered. However, the appeal is dismissed without .prejudice. Costs of this appeal are awarded to respondents.

Quarles, C. J., concurs. Stockslager, J., took no part in the hearing or decision of the case.