Adams v. McPherson

SULLIVAN, J. This is an attempted appeal from the judgment. The respondent moves to dismiss the appeal on the ground that the record fails to show that the notice of appeal has been served. Section 4808 of the Eevised Statutes of Idaho, provides as follows: “An appeal is taken by filing 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.” This section is mandatory, and requires appellant to file with the proper clerk, and to serve on the adverse party ox his attorney, the notice of appeal. The appeal is taken by complying with the requirements of said section, and without compliance therewith an appeal cannot be taken. The jurisdiction depends upon a compliance with the provisions of said section, and the record on appeal must affirmatively show that the notice of appeal was served upon the adverse party or his attorney, to give this court jurisdiction to determine the ease upon its merits. In Tootle v. French, ante, p. 1, 25 Pac. 1091, this court held that the record must affirmatively show that the notice of appeal had been filed with the clerk, and served on the adverse party or his attorney, within the time required by the statute. (See, also, Hayne on New Trial and Appeal, sec. 210; Ellis v. Bennett (Cal.), 3 Pac. [721] 801; Brown v. Green, 65 Cal. 221, 3 Pac. 811; Franklin v. Reiner, 8 Cal. 340; Beets v. Chart, 79 Cal. 185, 21 Pac. 730; Pateman v. Tyrrel, 59 Cal. 320.) The judgment of the court below is affirmed, and the appeal dismissed, with costs in favor •of the respondent. Huston, C. J., and Morgan, J., concur.