Stout v. Cunningam

MORGAN, C. J. On September 16, 1915, an order was made by the district judge sustaining respondent’s demurrer [85] to appellants’ complaint. On October 16, 1915, appellants having refused to further plead, an order, in effect a judgment dismissing the action, was signed by the judge and filed by the clerk of the district'court, and on January 13, 1916, appellants filed their notice of and undertaking on appeal. That appeal was, on January 19, 1917, dismissed because of lack of diligence in its prosecution. (Stout v. Cunningham, 29 Ida. 809, 162 Pac. 928.) The order, or judgment of dismissal of the action in the district court, was not entered in the judgment-book as required by Rev. Codes, sec. 4454, until January 24, 1917, and, therefore, the appeal which we dismissed was prematurely taken and did not confer jurisdiction on this court. (Yeomans v. Lamberton, 29 Ida. 801, 162 Pac. 674; Athey v. Oregon Short Line R. R. Co., 30 Ida. 318, 165 Pac. 1116.) Our lack of jurisdiction was not disclosed by the record, nor was it brought to our attention prior to the dismissal of the appeal, or our order would have been based on that ground and not on appellants’ lack of diligence. This appeal was perfected on April 24, 1917, and respondent has moved to dismiss it, and has assigned as ground therefor “that an appeal was heretofore taken by said appellants to the above-entitled court from the judgment entered in the district court of the third judicial district of the state of Idaho, in and for the county of Ada, and was not dismissed by the above-entitled Court without prejudice to another appeal, thereby affirming the judgment of the district court. ’ ’ The legislature is invested by the constitution, art. 5, see. 13, with power to provide a proper system of appeals. Pursuant to that authority it enacted Sess. Laws, 1915, chap. 80, p. 193 (now C. S., sec. 7152), wherein it is provided that an appeal may be taken to the supreme court from a final judgment. Prior to the enactment of Sess. Laws, 1917, chap. 110, p. 389, an appeal could not be perfected from a judgment before it was actually entered. (Yeomans v. Lamberton and Athey v. Oregon Short Line R. R. Co., supra.) [86] At the time our decision dismissing the attempted appeal was made the judgment sought to he appealed from had not been entered, and the entire proceeding in this court was a nullity. Our void order of January 19, 1917, cannot be construed to be an affirmance of a judgment which was thereafter entered, nor does it defeat an appeal regularly taken within the time and in the manner prescribed by law. The motion is overruled. Rice and Budge, JJ., concur.