Continental & Commercial Trust & Savings Bank v. Werner

BUDGE, C. J. This action was brought by Continental & Commercial Trust & Savings Bank against Wilhelmina Werner, her husband, and Gooding county, Idaho, to foreclose a lien upon certain real property for the unpaid principal, interest and assessments due for water right. Default was entered against Wilhelmina Werner and no service was made upon her husband. Respondent, Gooding county, answered, claiming its lien for taxes on said premises to be prior to the' lien of appellant. The cause was tried to the court upon a stipulation of facts and judgment was entered in favor of appellant and against respondent, Wilhelmina Werner, ordering foreclosure and sale of the premises. The court adjudged and decreed the lien of respondent, Gooding county, to be a prior lien to [602] that of appellant. Judgment was entered and filed on June 20, 1921. Notice of appeal from the judgment was not filed until September 20, 1921, more than 90 days after the entry of the judgment and after the statutory time for filing the same had expired. (April 23, 1923.) C. S., sec. 7152, provides as follows: “An appeal may be taken to the supreme court from a district court: “1. From a final judgment in an action .... within 90 days after the entry of such judgment .... ” In the ease of Goade v. Gossett, 35 Ida. 84, 204 Pac. 670, it is held: “Appeal from judgment taken after expiration of statutory time will be dismissed.” See, also, to the same effect: Glenn v. Aultman & Taylor M. Co., 30 Ida. 719, 167 Pac. 1163; Mills v. Board of County Commrs., 35 Ida. 47, 204 Pac. 876; Chapman v. Boehm, 27 Ida. 150, 147 Pac. 289; Moe v. Harger, 10 Ida. 194, 77 Pac. 645. In the case last cited it is said: “This is a jurisdictional question and the court has no power to extend the time or cure the defect. On this question there is a unanimity of opinion among the courts.” For the reason that this court is without jurisdiction this appeal must be dismissed, and it is so ordered. Costs are awarded to respondent, Gooding county. McCarthy and Dunn, JJ., concur.