Wallace v. McKenna

217 P. 982 | Idaho | 1923

DUNN, J.

— This action was brought by appellant to recover the sum of $900 as commissions for the sale of certain real estate. A demurrer to the complaint was filed and overruled by the court. Upon the issues being joined a trial was had 'before the court and a jury and at the close of appellant’s evidence a motion for nonsuit was made and granted. Thereupon judgment was entered dismissing the action and awarding costs in favor of respondent. A motion to tax costs was thereafter made by appellant and an order was made by the court taxing costs, to which appellant duly excepted. A motion for a new trial was then made and overruled. This appeal is taken from the judgment, from the order overruling the motion for a new trial and from that part of the judgment and order taxing as costs the mileage and fees of one Overman.

Eight assignments of error are specified and relied upon by appellant. The first four relate to the action of the court in granting the motion for nonsuit and entering judgment in favor of respondent. The judgment was entered on February 16, 1921, and the notice of appeal was not filed until September 1, 1921, more than ninety days after the entry of such judgment. The appeal was not taken within ninety days after the entry of the judgment as provided by C. S., sec. 7152, subd. 1, and the court being without jurisdiction the appeal from the judgment will be dismissed. (Glenn v. Aultman & Taylor M. Co., 30 Ida. 719, 167 Pac. 1163; Mills v. Board of County Commrs., 35 Ida. 47, 204 Pac. 876; Chapman v. Boehm, 27 Ida. 150, 147 Pac. 289; Moe v. Harger, 10 Ida. 194, 77 Pac. 645; Continental & Commercial Trust & Sav. Bank v. Werner, 36 Ida. 601, 215 Pac. 458.)

The facts are substantially as stated in Wallace v. McKenna, 31 Ida. 477, 479, 173 Pac. 749, and will not be repeated here. The action was upon a written contract which expired by its own terms June 25, 1916. The sale was not made until July 11, 1916, and it is not certain that it was made by appellant, but even if it were, appellant still had not brought himself within the terms of the contract under which he claimed the right to recover. The court did not err in granting the judgment of nonsuit and dismissal.

The motion for a new trial was based upon alleged errors of the court in granting the motion for nonsuit and was properly overruled.

The observations of this court on the former appeal, 31 Ida. 477, 480, 173 Pac. 749, on the right of a broker to recover on a contract to sell real estate and the law governing such a contract are applicable to this appeal.

The last assignment of error is directed toward the allowance by the court of mileage and witness fees of one Over-man, who was present but was not sworn and did not testify. Respondent’s showing brought him within the rule laid down by this court in the case of Bechtel v. Evans, 10 Ida. 147, 77 Pac. 212. We think no error was committed by the trial court in taxing witness fees and mileage of this witness as costs.

The judgment should be affirmed, and it is so ordered. Costs are awarded to respondent.

McCarthy, William A. Lee and Wm. E. Lee, JJ., concur.

Petition for rehearing ■ denied.