Hudson v. Kootenai Power Co.

GIVENS, J.- — Both respondents have moved to dismiss the appeal because the reporter’s transcript was never served on the Kootenai Power Company, nor any notice given it or its attorney of the service of the transcript on the other respondent, as provided in C. S., sections 6886 and 7166, and rule 28 of this court. Appellant urges that the motion to dismiss filed by the city of Coeur d’Alene was never served on appellant or its attorney, and there is a sharp conflict as to whether such service was made prior to the presentation of this matter to this court. It is unnecessary to decide whether such service was made because a notice of the motion to dismiss was given by the other respondent and properly served. This court has held that failure to serve in compliance with the statutes deprives this court of jurisdiction (Strand v. Crooked River Co., 23 Ida. 577, 131 Pac. 5; Bohannon Dredging Co. v. England, 30 Ida. 721, 168 Pac. 12; Columbia Trust Co. v. Balding, 34 Ida. 579, 205 Pac. 264), and that where the statutes were not complied with as to service of the transcript the appeals would be dismissed. (Coon v. Sommercamp, 26 Ida. 776, 146 Pac. 728; Boise-Payette Lumber Co. v. McCarthy, 31 Ida. 305, 170 Pac. 920; Fort Misery Highway District v. State Bank, 41 Ida. 491, 239 Pac. 277.) The precise point involved here, that is, where service was made on one party but not on the other, was not in any of the above eases. It would seem, however, that the *97 rule where notice of appeal has not been served on all the adverse parties would apply. In such circumstances it has been repeatedly held that the appeal will be dismissed, though on motion of the party served. (Johnston v. Bronson, 19 Ida. 449, 114 Pac. 5; Berlin Machine Works v. Bradford, 21 Ida. 669, 123 Pac. 637; Chapman v. Boehm, 27 Ida. 150, 147 Pac. 289; Glenn v. Aultman, 30 Ida. 727, 167 Pac. 1163; Lind v. Lambert, 40 Ida. 569, 236 Pac. 121; Cook v. Miller, 30 Ida. 749, 168 Pac. 911; Abel v. Noble Estate, 43 Ida. 391, 252 Pac. 493; Lambert v. Paysee, 45 Ida. 564, 263 Pac. 1001.) We can see no logical distinction. Appeal dismissed. Budge, C. J., and T, Bailey Lee and Yarian, JJ., concur. Wm. E. Lee, J., dissents.