McMillan v. Sproat

BUDGE, C. J. Respondent has moved to dismiss appellants’ appeal for the reason that the undertaking on appeal was not filed within five days after the service of the notice of appeal. The notice of appeal was served May 16, 1928, and the undertaking on appeal was filed May 22, 1928. C. S., sec. 7153, provides in material part that an appeal “is ineffectual for any purpose unless within five days after service of the notice of appeal, an undertaking be filed, or a deposit of money be made with the clerk, .... or the undertaking be waived by the adverse party in writing.” There was no deposit of money with the clerk, nor was the undertaking waived. The provisions of the foregoing statute are mandatory and jurisdictional, and failure of compliance therewith gives this court no jurisdiction to entertain the appeal, and the same must be dismissed. (Brown v. Hanley, 3 Ida. 219, 28 Pac. 425; Cole v. Fox, 13 Ida. 123, 88 Pac. 561; Melquist v. Board of Commrs., 45 Ida. 296, 261 Pac. 774; Caldwell v. Evans, ante, p. 342, 275 Pac. 779.) The appeal is dismissed. Givens, T. Bailey Lee, ¥m. E. Lee and Varían, JJ., concur.