Brown v. Hanley

28 P. 425, 3 Idaho 219, 1891 Ida. LEXIS 39

Opinion

SULLIVAN, C. J.

Respondent moves this court to dismiss-this appeal, on the ground that no undertaking on appeal was-filed within five days after the service of the notice of appeal. The record shows that the notice of appeal was served on the-twenty-second day of July, 1891, and that the undertaking on appeal was filed on the first day of August, 1891. There is no dispute as to the facts. Appellants make a counter-motion for a nunc pro tunc order permitting an undertaking to be now filed, based upon an affidavit setting forth the cause of the delay in filing said undertaking within the time required by law. Counsel for appellants urge, with marked ingenuity and ability, that this court has the authority to grant said motion, especially as our statutes, and all proceedings under them, must be liberally construed, with a view to effect their objects and to promote justice. Section 4808 of the Revised Statutes of Idaho is too piain to require construction. It is imperative, and pro-1 vides that “the appeal is ineffectual for any purpose, unless within five days after the service of the notice of appeal an undertaking be filed.” This is a statute of limitation, and this court has no authority to extend it. This court has no jurisdiction to permit an undertaking on appeal to be filed in this court, unless ■one has first been filed in the court below, within the time allowed by said section 4808. This view is fully sustained by numerous decisions, under statutes similar to ours, by courts of last resort. (Cook v. Railway Co., 7 Utah, 416, 27 Pac. 5, and authorities therein cited.) This attempted appeal is dismissed with costs in favor of respondent.

Huston and Morgan, JJ., concur.