65 P. 431 | Idaho | 1901
The respondent moves to dismiss both appeals in this case — the appeal from the order denying a new trial, and the appeal from the judgment. The motion to dismiss the appeal from the order denying a new trial is based upon the ground that the undertaking upon appeal was executed on February 5, 1901, by the sureties thereto, and the notice of appeal was not served or filed until the eighth day of February, 1901, nor was the order denying a new trial entered by the clerk until February 8, 1901. It appears from the record that the said order denying a new trial was made by the district judge, at chambers, on the fifth day of February, 1901, and by the said judge indorsed; "Filed January 26, 1901. A. B. Mayhew, Judge” — but was not filed by the clerk until February 8, 1901, upon which date the notice of appeal was served and filed, and the said undertaking .upon appeal, executed three days prior thereto, was filed. These facts appear by the record in this case, but accompanying the motion of respondent is the affidavit of the deputy district clerk, in which it is stated that said notice was not filed by the clerk until the seventh day of March, 1901, upon which day it was indorsed by the clerk, “Filed February 8, 1901.” No reason is given for such indorsement, nor is any reason given or explanation whatever found in the record as to why the clerk did not indorse said order as filed upon the date that the same was made. It is also contended that the said o'rder has not been entered in the minutes or upon the records of said court. Eespondent contends that this appeal was prematurely taken. This court must, however, upon the record, hold that said order denying a new trial was filed by the clerk on the eighth day of February, 1901, and that such filing was .a sufficient entry of such order. From this ruling it appears that the appeal was taken, not prematurely, but at a time when the same could be properly taken. The other ground of the motion — that the sureties signed and
The motion to dismiss the appeal from the judgment is. based upon the following grounds: 1. That the respondent excepted to the sufficiency of the sureties within the statutory time. 2. That appellant’s record on appeal-does not contain all the papers used, heard, and considered on the motion of the appellant for a new trial herein, the following papers being omitted from said record, to wit: (1) The respondent’s motion to strike from the files the appellant’s bill of exceptions; (2) the order of the district judge overruling said motion; (3) the motion of respondent to dismiss appellant’s motion-for a new