Bower v. Mabey

PER CURIAM.

Larry Bower appeals from a decision of the district court which affirmed the magistrate’s order characterizing two certificates of deposit as property of the Wayne A. Bower estate and ordering Bower and his sister to turn the two certificates of deposit over to the personal representative of the estate.

The magistrate’s order was entered on December 22, 1988. Forty-six days later, on February 6, 1989, Larry filed a notice of appeal to the district court. Absent circumstances not present in this case, appeals to the district court from the magistrate’s division must be filed within forty-two days from entry of the judgment or order from which the appeal is taken. I.R. C.P. 83(e). This time limit is jurisdictional. I.R.C.P. 83(b).

Failure to file a timely appeal was not raised either to the district court or to this Court. The district court affirmed the order of the magistrate, but because the notice of appeal was not timely filed, the district court lacked jurisdiction to hear the appeal. In the Interest of Wellard, 97 Idaho 197, 198, 541 P.2d 621, 622 (1975); Herrett v. Herrett, 105 Idaho 358, 359, 670 P.2d 63, 64 (Ct.App.1983).

Accordingly, we vacate the decision and order of the district court, leaving -unaffected the magistrate’s interlocutory order. No costs or attorney fees awarded on appeal.