Myers v. Harvey

Respondent moves to dismiss the appeal on the following grounds : (1) that it was not perfected within the time prescribed by C. S., sec. 7152; (2) that the undertaking was not filed within the time prescribed by C. S., sec. 7153. C. S., sec. 7152, provides that an appeal must be taken within 90 days from the entry of judgment. This means that the notice of appeal must be filed within 90 days. Sec. 7153 provides that within five days after service of the notice of appeal an undertaking must be filed. In this case judgment was entered June 12, 1922. Notice of appeal was served Sept. 9, but filed Sept. 11. Undertaking on appeal was filed Sept. 16. C. S., sec. 9451, reads:

"The time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last is a holiday, and then it is also excluded."

Sunday is a holiday within the meaning of the statutes. (C. S., sec. 9450.) The notice of appeal was served on the 89th day, but filed on the 91st day. However, the 90th day, Sept. 10th, was Sunday. Therefore the filing of the notice of appeal on Sept. 11th was timely. (C. S., sec. 9451, supra.)

Referring now to the second ground of the motion, the notice of appeal was served on Sept. 9th, but the undertaking was not filed until Sept. 16th. C. S., sec. 7153, provides:

". . . . but the appeal is ineffectual for any purpose unless within five days after service of the notice of appeal, an undertaking be filed, or a deposit of money be made with the clerk, as hereinafter provided, or the undertaking be waived by the adverse party in writing."

The filing of the undertaking on appeal is jurisdictional as well as the filing of the notice. Since the undertaking in this case was not filed within five days after service of the notice, and there was no waiver, the second ground of the motion to dismiss is well taken and the appeal must be dismissed. To this effect, see Brown v. Hanley, 3 Idaho 219,28 P. 425; Cole v. Fox, 13 Idaho 123, 88 P. 561; Haas v.Teters, 17 Idaho 550, 106 P. 305; Woodmansee Webster Co. v.Woodmansee, 31 Idaho 747, 176 P. 148; Kingsbury v. Lee,36 Idaho 447, 211 P. 552; Kimzey v. Higkland Livestock etc. Co.,37 Idaho 9, 214 P. 750. In People v. Hunt, 1 Idaho 371, the court said that the undertaking must be filed within five days after the filing of the notice of appeal, citing the Civil Practice Act, sec. 296, passed by the first session of the legislature in 1864. It provided expressly that the undertaking shall be filed within five days after the notice of appeal is filed. The decision is therefore not in point under our present statute. In Hattabaugh v. Vollmer, 5 Idaho 23, 46 P. 831, this court said that under R. S., sec. 4808, the undertaking must be filed within five days after the filing and service of the notice of appeal. The court misquoted the statute which provided that the undertaking must be served within five days after service of the notice of appeal. (See R. S., sec. 4808, Code of Civil Procedure of 1881, sec. 643.) Under the statute now in force the appeal must be dismissed on the ground that the undertaking was not filed within the time prescribed by law. The motion is granted, with costs to respondent.

Budge, Dunn, William A. Lee and Wm. E. Lee, JJ., concur.