Slocum v. Slocum , 1 Idaho 589 ( 1875 )

Hollister, J.,

delivered tbe opinion.

Whitson, J., concurred.

This is a motion by respondent to dismiss tbe appeal herein. It appears from tbe record that notice of tbe appeal was filed in tbe clerk’s office on tbe third day of January, 1875, and that tbe service thereof was made upon tbe attorney of tbe appellee on tbe second day of tbe same month.

It is provided in section 285 of tbe practice act (2 Sess. Laws, 134) that “ tbe appeal shall be made by filing with tbe clerk of tbe court with whom tbe judgment or order appealed from is entered, a notice stating tbe appeal from tbe same, or some specific part thereof, and serving a copy thereof upon tbe adverse party or bis attorney.” By this statute it becomes necessary as a part of tbe notice that it should be filed, and consequently it must precede or be contemporaneous with the service of a copy on tbe adverse party. This has been decided in California under a statute similar to ours, and in adopting its statute we adopt tbe construction which has been given to it by tbe courts of that state.

Before this court can take jurisdiction of an appeal the filing of the notice and the ser,vice of a copy thereof as prescribed by the statute must be had, and before the notice is filed, it possesses none of the elements of a notice, and consequently there can be no copy of it. (See 24 Cal. 94; 10 Id. 31; 34 Id. 519; 8 Nev. 177.)

The motion is allowed and the appeal dismissed.