Tootle v. French

MORGAN, J. This appeal is taken from the judgment and from the order overruling the motion for a new trial. The respondents ask the court to dismiss the appeal for the reason that the record does not show that there has ever been a notice of appeal filed in this case. The constitution gives this court jurisdiction to review upon appeal any decision of the district, court, etc. (Const., art. 5, sec. 9.) The statute points out the method by which an appeal to the supreme court is taken, as follows: "An appeal is taken by fifing with the clerk of the court in which the judgment or order appealed from is entered a notice stating the appeal from the same, or some specific part thereof, and serving a similar notice on the adverse party or his attorney.” (Idaho Rev. Stats., sec. 4808.) The record must affirmatively show that the notice of appeal was filed with the clerk below, and served upon the adverse party, or his attorney, within the time required by statute. (Franklin v. Reiner, 8 Cal. 340 ; Whipley v. Mills, 9 Cal. 641; Hayne on New Trial and Appeal, ? sec. 210, and other authorities there cited; Salt Lake Brewing Co. v. Gillman, 2 Idaho, 195, 10 Pac. 32.) Judgment in this cause was rendered in the district court on May 31, 1889, and placed on file June 1, 1889, Order overruling motion for new trial was filed January 8, 1890. Notice of appeal from said order and from the judgment was served on counsel for respondents March 10, 1890. This service was not within the sixty days given by the statute within which an appeal may be taken from an order overruling a motion for a new trial. The record does not show that the notiae of appeal was ever filed with the clerk. That which is required by the statute cannot be dispensed with by the court. Failure of service of notice of appeal within the sixty days is fatal to the appeal from the order overruling the* motion for a new trial. Failure to file the notice with the clerk of the court below is fatal to both appeals. Without these requirements of the statute are complied with, this court has no jurisdiction. Objection for want of jurisdiction may be made at any time. Both appeals are dismissed. Huston, J., concurring. Sullivan, J., having been of counsel in the court below, took no part in the hearing of this cause.