Glenn v. Aultman & Taylor Machinery Co.

BUDGE, C. J. This action was brought by Fred W. Glenn against Aultman & Taylor Machinery Company, a corporation, Charles H. Dobson and W. F. Frambaeh. The jury returned a verdict against the defendants Dobson and Frambach, upon which judgment was entered January 31, 1917. Defendants Dobson and Frambaeh moved for a new trial, which was denied, and an order entered thereon on April 3, 1917. Subsequent to the entry of the judgment it was discovered that the name of Frambaeh had been omitted therefrom, and upon motion the trial court made an order on June 1, 1917, correcting the judgment theretofore signed and entered by inserting therein the name of Frambaeh. On June 1, 1917, Dobson and Frambaeh appealed: First, from the judgment; and, second, from the order overruling the motion for a new trial, which order was filed June 1, 1917. The appeal was thereafter attempted to be perfected by the filing of the notice of appeal, undertaking and transcript. The case comes up at this time upon motion to dismiss the appeals. The notice of appeal from the judgment was not filed until approximately thirty days after the time for filing [721] same had' expired, thereby conferring no jurisdiction upon this court to hear the same. The order overruling the motion for a new trial cannot be reviewed by this court, for the reason that the transcript contains no certificate of the trial judge, clerk or the attorneys, as required by sec. 4821, Rev. Codes, and Rule 24 of the rules of this court, and there is no way to determine whether the papers contained in the record before us constitute all of the records, papers and files considered and acted upon by the trial court upon the hearing of the motion for a new trial. There is nothing, therefore, for the court to consider, and it follows that the appeal from the order of the court denying a new trial must be dismissed. (Dudacek v. Vaught, 28 Ida. 442, 154 Pac. 995; Walsh v. Niess, 30 Ida. 325, 164 Pac. 528.) The appeals are dismissed. Costs awarded to respondent.