McCurtain v. Newton

WM. E. LEE, J. This action was brought to enjoin the sale of certain stock of a corporation because of a failure to pay an assessment. The court issued a temporary injunction. The cause was tried on the merits, and the temporary injunction was dissolved and the action dismissed. The decree was filed June 22, 1923. Notice of appeal to this court was filed June 30, 1923. That the notice of appeal was served by mail is disclosed by an affidavit dated and filed July 2, 1923, the date of mailing the notice not being specifically stated. The clerk of the trial court certifies “that an undertaking on appeal in due form has been properly filed by said plain *402 tiffs and appellants on the 12th day of July, 1923, to which no exception has been filed.” It is apparent, therefore, that the undertaking on appeal was filed at least ten days after service of the notice of appeal. Under C. S., sec.- 7153, an appeal to this' court “ .... is ineffectual for any purpose unless within five days after service of the notice of appeal, an undertaking be filed, .... ” The undertaking not having been filed within five days after service of notice of appeal, this court is without jurisdiction to consider the appeal. (Kimzey v. Highland Livestock & Land Co., 37 Ida. 9, 214 Pac. 750; Myers v. Harvey, 39 Ida. 724, 229 Pac. 1112, and cases there cited; Rupert National Bank v. Insurance Company of North America, post, p. 530, 234 Pac. 465.) This action is taken by the court on its own motion, the matter not having been, in any manner, by counsel, brought to the court’s attention. In Myers v. Harvey, there was a motion to dismiss, but in the two other cases cited above, action was taken by the court on its own motion. That the practice must be uniform and applied to all cases alike there is no room for argument. . Appeal dismissed. Costs to respondent. McCarthy, C. J., Budge and William A. Lee, JJ., concur.