Bulfinch v. Schatz

217 P. 983, 37 Idaho 462, 1923 Ida. LEXIS 179

Opinion

BUDGE, C. J.

— This action was brought to recover the value of an interest in a motor-truck. The cause was tried to the court and jury and judgment was rendered in favor of respondent as prayed for in his complaint. Thereafter, a motion for a new trial was made. This appeal is taken "from that certain order made and entered in the above-entitled cause on the 15th day of January, 1920, . . . . denying and overruling the defendant’s motion for a new trial, and from the whole thereof.” However, the record fails to show such order overruling the motion for a new trial, and appellant failed to request such order included in the praecipe for clerk’s transcript.

C. S., see. 7165, provides:

"On an appeal from an order granting or- refusing a new trial, the appellant must furnish the court with a copy of the notice of appeal, of the order appealed from, and of the .papers designated in section 6892 of this code.”

O. S., sec. 7168, also provides:

"If the appellant fails to furnish the requisite papers the appeal may be dismissed . . . . ”

In the case of Hale v. Jefferson County, 39 Mont. 137, 101 Pac. 973, it was held:

"Where the record on appeal does not contain a copy of the order denying motion for new trial, the appeal from such order will be dismissed.”

To the same effect see: Meadors v. Johnson, 27 Okl. 543, 117 Pac. 198; Swank v. Tallman, 25 Okl. 424, 106 Pac. 644; Jones v. Bilby, 43 Okl. 494, 143 Pac. 330; In re Cochran’s Estate, 48 Okl. 672, 149 Pac. 1089; Schuck v. Moore, 48 Okl. 533, 150 Pac. 461; Powell v. First State Bank af Clinton, 56 Okl. 44, 155 Pac. 500.

Upon the foregoing authority the appeal should be dismissed, and it is so ordered. Costs are awarded to respondent.

McCarthy, Dunn and Wm. E. Lee, JJ., concur.

Petition for rehearing denied.