Columbia Trust Co. v. Balding

BUDGE, J. This is an appeal from a judgment foreclosing a lien on certain stock owned by appellants in the Blaine County Canal Company, and foreclosing all of appellants’ right, title and interest in and to certain lands to which the water right evidenced by said stock is appurtenant, under what is commonly known as the Carey Act. From the record it appears that judgment was entered in this cause on May 29, 1919, and the appeal perfected therefrom on August 13, 1919; that on August 15, 1919, the district judge made an order directing the court reporter to prepare, complete and lodge his transcript with the clerk on or before September 24, 1919; that on October 7, 1919, an order was made extending the time for completing and lodging said transcript until December 1, 1919, and on December 9, 1919, a further extension was granted until February 1, 1920; that the reporter’s transcript was filed with the clerk on January 11, 1920, by whom two copies were sent to appellants’ attorneys by mail on January 12, 1920; that the transcript was settled and allowed by the district judge on January 21, 1921; that appellants’ attorneys, Messrs. Clark & Clark, withdrew from the ease on January 27, 1921, and that W. A. Brodhead, Esq., withdrew from the case on July 14, 1921; and that the completed transcript was [581] delivered by the elerk to appellants’ present attorney on September 15, 1921, and was lodged with the elerk of the supreme court on September 19, 1921. Respondent has moved to dismiss this appeal for the reason that: “The appellants have not at any time served a copy of such reporter’s transcript upon the' respondent; that without any notice, whatsoever, to the respondent, and in its absence, the transcript of the record herein was approved and settled by the trial court on the twentieth day of January, 1921; that more than sixty days have elapsed since the settlement of said transcript by the trial court as aforesaid, and that more than six months have elapsed since the perfecting of the appeal in said cause as aforesaid.” Rule 26 of the rules of this court provides that: “ . . . . in all cases in which the record on appeal shall contain a reporter’s transcript of the testimony prepared under C. S., sec. 6886, the record on appeal must be served and filed in this court within 60 days after the settlement of or refusal to settle the transcript by the trial court, .... in no case shall a transcript on appeal be filed in this court more than six months after the perfecting of the appeal, except by order of the court or one of the justices thereof upon a showing of due diligence.....” Rule 29 provides that: “If the transcript of record is not filed within the time prescribed by rule 26, the appeal may be dismissed.....” Moreover, C. S., sec. 6886, subd. 2, requires the service of the reporter’s transcript within five days after the receipt thereof from the clerk, upon the adverse party or his attorney, and provides that the adverse party shall have ten days after such service within which to point out hy notice any errors in such transcript. C. S., sec. 7166, subd. 3, requires the appellant or his attorney, upon receipt of two copies of the clerk’s transcript, to forthwith serve one copy upon the adverse party or his attorney. (March 28, 1922.) The service required by C. S., sec. 6886, subd. 2, and sec. 7166, subd. 3, is mandatory, and a failure to make such service as is therein required divests this court of jurisdiction to consider on appeal the record or such portion thereof' as is involved in the failure of service. (Strand v. Crooked River Min. etc. Co., 23 Ida. 577, 131 Pac. 5; Coon v. Sommercamp, 26 Ida. 776, 146 Pac. 728; Boise-Payette Lumber Co. v. McCarthy, 31 Ida. 305, 170 Pac. 920; Hansen v. Boise-Payette Lumber Co., 31 Ida. 600, 174 Pac. 703.) In this case, neither the reporter’s nor the clerk’s transcript was served, the record on appeal was not filed within 60 days after settlement of the reporter’s transcript, and no showing is made that the failure to file the transcript was not due to the fault of appellant. Nothing remains, therefore, for this court to consider, and the appeal must be dismissed. Costs are awarded to respondent. Bice, C. J., and McCarthy and Lee, JJ., concur. Dunn, J., dissents.