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Brown v. Hanley

BROWN v. HANLEY, Sheriff

Brown v. Hanley, 28 P. 425 (Idaho 1891)
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Court
Idaho Supreme Court · State Highest Courts
Decided
December 18, 1891
Judges
Huston, Morgan, Sullivan
Citations
28 P. 4253 Idaho 2191891 Ida. LEXIS 39
Cited by 8
Syllabus
Section 4808 of the Revised Statutes Construed — Undertaking on Appeal — When to be Riled. — Section 4808 of the Revised Statutes of Idaho requires an undertaking on appeal to be filed within five days after the service of notice of appeal, in order to render an appeal effectual for any purpose. -Supreme Court has ' no Jurisdiction to Enlarge Time to Rile Undertaking on Appeal. — This court has no jurisdiction or authority to permit an undertaking on appeal to be filed after the five days have expired. (Syllabus by the court.)
Summary
.APPEAL from District Court, Shoshone County. In the case of receivers the courts have uniformly held that, 'even where receivers have instituted suit without giving bond, a nunc pro iunc order may be entered; and the same rule has been applied in cases of injunctions and other provisional remedies. (O’Farrell v. Stockman, 19 Ohio St. 297; High on Receivers, sec. 112; Morgan v. Potter, 17 Hun, 403; Whiteside v. Prendergast, 2 Barb. Ch. 471; Railroad Co. v. Patton, 5 W. Ya. 234; North Carolina Gold etc. Co. v. North Carolina Ore etc. ‘Co., 79 N. C. 48; 2 High on Receivers, sec. 1634.) So a party •appellant is frequently relieved against a failure to file- the transcript in time. (Platt v. Preston, 19 Blatchf. 312, 8 Fed. .182; Hardt v. Birely, 72 Md. 134, 19 Atl. 606.) A party appellant is frequently relieved against irregularities, imperfections and mistakes in the undertaking or bond on appeal, even in cases where such undertaking or bond is so fatally defective -as to be absolutely void. (Boyd v. Burrel, 60 Cal. 281; Perkins v. Cooper, 87 Cal. 243, 25 Pac. 411; Means v. Trout, 16 Serg. & R. 348; Satterlee v. Stevens, 11 Ohio, 420; Powell’s Appellate Proceedings, sec. 18.) Our Code of Civil Procedure provides: "But the appeal is ineffectual for any purpose, unless within five days after service of the notice of appeal an undertaking be filed,” etc. (Idaho-Rev. Stats., sec. 4808; Cal. Code Civ. Proc., see. 940.) An undertaking filed before service of notice of appeal is of no-force- and the appeal ineffectual for any purpose. {Little v.. Jacks, 68 Cal. 344, 8 Pac. 856, 9 Pac. 264, 11 Pac. 128.) The-undertaking must be filed within five days after service of the-notice of appeal, and not within five days after the filing.. {IJeares v. Gorville Mfg. Go., 62 Cal. 516; Schurtz v. Romer,. 81 Cal. 245, 22 Pae. 657; Perkins v. Cooper, 87 Cal. 243, 25-Pae. 411; Grew v. Biller, 86 Cal. 554, 25 Pac. 66; Stratton v. Graham, 68 Gal. 168, 8 Pae. 710.) The appeal is ineffectual a& this court has never acquired jurisdiction and a motion to dismiss is the proper practice. {Boyd v. Burrel, 60 Cal. 281; Perkins v. Cooper, 87 Cal. 243, 25 Pac. 411; Stratton v. Graham, 68-Cal. 168, 8 Pac. 710; Grew v. Biller, 86 Cal. 555, 25 Pac. 66; Schurtz v. Romer, 81 Cal. 245, 22 Pac. 657.) Nor will the supreme court in such a ease allow a new or amended undertaking to be filed, as there has been no preceding insufficient undertaking filed. {Cook v. Oregon R. R. Go., 7 Utah, 416, 27 Pac. 5; Home etc. Associates v. Wilkins, 71 Cal. 626, 12 Pac. 799; Hastings v. TJallock, 10 Cal. 31; Schurtz v. Romer, 81 Cal. 246, 22 Pac. 657.)

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Sullivan

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SULLIVAN, C. J.

Respondent moves this court to dismiss-this appeal, on the ground that no undertaking on appeal was-filed within five days after the service of the notice of appeal. The record shows that the notice of appeal was served on the-twenty-second day of July, 1891, and that the undertaking on appeal was filed on the first day of August, 1891. There is no dispute as to the facts. Appellants make a counter-motion for a nunc pro tunc order permitting an undertaking to be now filed, based upon an affidavit setting forth the cause of the delay in filing said undertaking within the time required by law. Counsel for appellants urge, with marked ingenuity and ability, that this court has the authority to grant said motion, especially as our statutes, and all proceedings under them, must be liberally construed, with a view to effect their objects and to promote justice. Section 4808 of the Revised Statutes of Idaho is too piain to require construction. It is imperative, and pro-1 *221 vides that “the appeal is ineffectual for any purpose, unless within five days after the service of the notice of appeal an undertaking be filed.” This is a statute of limitation, and this court has no authority to extend it. This court has no jurisdiction to permit an undertaking on appeal to be filed in this court, unless ■one has first been filed in the court below, within the time allowed by said section 4808. This view is fully sustained by numerous decisions, under statutes similar to ours, by courts of last resort. (Cook v. Railway Co., 7 Utah, 416, 27 Pac. 5 , and authorities therein cited.) This attempted appeal is dismissed with costs in favor of respondent.

Huston and Morgan, JJ., concur.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 8 cases

View all citing references →
1894: 11906: 11907: 11922: 11923: 11924: 11929: 11963: 118942026peak 1894 · 1

Relies on it most ⓘ

  1. Kimzey v. Highland Livestock & Land Co.214 P. 750 (Idaho 1923)
  2. Sandstrom v. Smith84 P. 1060 (Idaho 1906)
  3. Young v. Tiner38 P. 697 (Idaho 1894)
  4. Cole v. Fox88 P. 561 (Idaho 1907)
  5. Myers v. Harvey229 P. 1112 (Idaho 1924)
  6. McMillan v. Sproat278 P. 224 (Idaho 1929)

Most recent

  1. Oliverson v. Anderson380 P.2d 214 (Idaho 1963)
  2. McMillan v. Sproat278 P. 224 (Idaho 1929)
  3. Myers v. Harvey229 P. 1112 (Idaho 1924)
  4. Kimzey v. Highland Livestock & Land Co.214 P. 750 (Idaho 1923)
  5. Kingsbury v. Lee211 P. 552 (Idaho 1922)
  6. Cole v. Fox88 P. 561 (Idaho 1907)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 1

DepthCaseCited by
Cook v. Or. Short Line & Utah Northern Ry. Co., 7 Utah 416 (1891) 2

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