Brebner v. Western Pine Manufacturing Co.

HOLDEN, J. Respondent has moved to dismiss the appeal of the Western Pine Manufacturing Company upon the ground 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 July 26, 1932, and the undertaking on appeal was filed August 2, 1932. Section 11-202, I. C. A., provides 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.” The undertaking was not waived and there was no deposit of money. The requirements 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. (McMillan v. Sproat, 47 Ida. 724, 278 Pac. 224, and cases therein cited.) Costs to respondent. Budge, C. J., and Givens, Morgan and Wernette, JJ., concur.