Rich v. French , 3 Idaho 727 ( 1893 )

SULLIVAN, J.

This is an attemped appeal from the-judgment. Respondent moves to strike from the record appellants’ notice of “intention to move for a new trial,” also-the “notice of settlement of statement,” also the order of the-court below refusing to settle statement, also “statement on motion for new trial,” and “affidavits on motion for new trial,”' on the grounds (1) that no statement on motion for new trial was ever settled; (2) that no order was made by the court below either granting or refusing a new trial. Subdivision 2, section 4456, of the Revised Statutes of 1887, provides, in ease of this kind, that the judgment-roll shall consist of “the pleadings, a copy of the verdict of the jury or findings of the court. or referee, all bills of exceptions taken and filed, and a copy of any order made on demurrer or relating to a change of parties, and a copy of the judgment.” Upon an examination of the record, we find that no statement of the case, nor bill of exceptions, has been settled by the court below. That being true, under the section above referred to the parts of the transcript covered by said motion as above indicated are no part, of the record on this appeal, and must be stricken out.

"Respondent moves to dismiss this appeal, on the ground that the record fails to show that an undertaking on appeal has been filed, as required by law. We find the objection sustained by the record. The record fails to show that an undertaking on appeal has been given, or that such undertaking has been waived. Section 4821 of the Revised Statutes of 1887, provides, among other things, in appeals from a final judgment,, that the record on appeal “must be accompanied by the certificate of the clerk or attorneys, that an undertaking on appeal in due form has been properly filed or the stipulation of the parties waiving an undertaking.” The attempted appeal is dismissed, at appellants’ costs, and the judgment of the court below affirmed.

Huston, C. J., and Morgan, J., concur.