Train Lumber & Coal Co. v. Jondahl

RICE, J.

This is an appeal from a judgment of the district court in and for Fremont county, dismissing an appeal to the district court from a judgment entered in the probate court on April 26, 1916.

The grounds of the motion to dismiss the appeal to the district court were (1) that the appeal from the probate court was not perfected within the time allowed by law; (2) that the appeal and proceedings in procuring the same were irregular and imperfect; and (3) that the undertaking filed in said action was not such an Undertaking as is required to be given in such eases.

An examination of the transcript shows that notice and undertaking on appeal were filed within thirty days after entry of the judgment, and were therefore filed in time.

As the motion failed to specify wherein the appeal and proceedings in procuring the same were irregular or imperfect, that ground will not bé considered.

The objection to the undertaking is that it “is insufficient and is not such an undertaking as is required to be given by section 4842 of the Rev. Codes of Idaho [C. S., see. 7151].” It is not pointed out wherein the undertaking is insufficient or fails to comply with the statute. No material defect is apparent on the face of the undertaking.

Some question seems to have been raised in the district court with reference to the failure of the sureties on the undertaking to justify. The record, however, fails to disclose that any exception to the sufficiency of tlfe sureties was filed in either the probate court or the district court. Such exceptions must be filed to be entitled to consideration.

Respondent filed a brief in this case, signed by an attorney who had not theretofore appeared, long subsequent to the time provided by rule 45 of this court for the filing of a brief by respondent. There is no showing that the brief was ever served upon appellants, or their attorneys of record. There is no stipulation consenting to the filing of this brief, and no order by the court, or any of the justices, granting permission to file the same. The brief will not be considered.

The judgment of the district court is reversed and the cause remanded, with instructions to overrule the motion to dismiss the appeal. Costs awarded to appellants.

Morgan, C. J., and Budge, J., concur.