State v. Subisaretta

BUDGE, J.- On April 17, 1916, appellant was charged in the justice’s court of Horseshoe Bend precinct, with wilfully, unlawfully, knowingly and intentionally herding, grazing and pasturing sheep in his charge on public domain occupied as a cattle range, and usually occupied by one George Cartwright, a cattle-grower, as a spring, summer and winter range for cattle. From a judgment of conviction in the justice’s court, appellant appealed to the district court of the third judicial district, on April 27, 1916, where, upon a trial de novo, he was again convicted and sentenced on October 26, 1916, to pay a fine and costs. Appellant filed a notice of motion and an. application for a new trial on December 12, 1916. The motion for new trial was overruled on July 30, 1917. On August 22, 1917, an appeal was taken both from the judgment and from the order denying the motion for new trial. Respondent moved to dismiss the appeal from the judgment, and it was conceded upon oral argument that the appeal from the judgment must be dismissed, for the reason that it was not taken within the time limited by C. S., sec. 9070. The record does not show that an exception was taken to the order of the court overruling appellant’s motion for new trial, and no exception was saved or settled in a bill of exceptions, for which reasons respondent moved to strike [476] from the files the purported transcript on appeal from said order and to dismiss the appeal therefrom. Where an exception is not taken and saved at the time an order overruling a motion for a new trial is made, or if the objection to the order is not properly presented in the record by bill of exceptions, the objection is waived, and will not be considered on appeal. (C. S., secs. 9008, 9010; State v. Smith, 4 Ida. 733, 44 Pac. 554; State v. Smith, 5 Ida. 291, 48 Pac. 1060; State v. Maguire, 31 Ida. 24, 169 Pac. 175; State v. Parks, 31 Ida. 694, 175 Pac. 813; State v. Crawford, 32 Ida. 165, 169 Pac. 511; State v. Ray, 32 Ida. 363, 182 Pac. 85; State v. Mushrow, 32 Ida. 562, 185 Pac. 1075.) The motion to dismiss the appeal from the order denying appellant’s motion for a new trial is sustained. i Rice, C. J., and Dunn and Lee, JJ., concur. McCarthy, J., being disqualified, did not sit at the hearing and look no part in the opinion.