Flynn v. Flynn

281 P.2d 510, 128 Mont. 550, 1955 Mont. LEXIS 17

• Court: Montana Supreme Court
• Decided: March 3, 1955
• Docket: No. 9501
• Status: Published

Opinion

PER CURIAM.

On November 18, 1954, appellant caused his transcript on appeal to be filed in the office of the clerk of the supreme court and thereafter on December 9, 1954, respondent filed her motion to dismiss the appeal and also on December 9, 1954, the appellant filed his motion to dismiss his said appeal.

The transcript on appeal shows that in the district court of Lewis and Clark County, in civil action No. 23558, entitled Donald E. Flynn, Plaintiff, v. Marilyn J. Flynn, Defendant, that on July 15, 1954, said district court made and entered a certain order respecting a certain final decree of divorce theretofore entered in said action, and that on July 27, 1954, such district court made and entered a final order modifying said decree of divorce and that thereafter by written notice served and filed on September 18, 1954, the plaintiff appealed to the supreme court;

And defendant’s counsel of record having interposed a motion for an order to dismiss said appeal upon the grounds and for the reason that plaintiff did not within 5 days after service of the notice of appeal file any undertaking on appeal or make any deposit of money with the clerk of the district court nor was there any waiver by defendant, she being the adverse party, of the said undertaking on appeal, all as is provided by R. C. M. 1947, sec. 93-8005, and it appearing that no undertaking on appeal was filed with the clerk of said district court until the 25th day of September 1954, being more than 5 days after said notice of appeal was served upon counsel for defendant;

Now Therefore it is Ordered that the motion of the plaintiff and appellant be and it is denied, and it is further ordered that the motion of the defendant and respondent to dismiss the appeal be and it is hereby granted and the appeal is hereby dismissed. See R. C. M. 1947, sections 93-8005, 93-8019, 93-8017; Johnson County Savings Bank v. Joe Klaffki Company, 26 Mont. 384, 68 Pac. 410; Hines v. Carl, 22 Mont. 501, 57 Pac. 88; Creek v. Bozeman, etc., Co., 22 Mont. 327, 56 Pac. 362; Pardee v. Murray, 4 Mont. 35, 1 Pac. 737; Hahn v. James, 26 Mont. 50, 66 Pac. 463; Washoe Copper Co. v. Hickey, 23 Mont. 319, 58 Pac. 866; 2 Cal. Jur., Appeal & Error, sec. 154, page 378; 3 C. J., Appeal and Error, sec. 1253, page 1180 and cases cited in Note 80, 4 C. J. S., Appeal and Error, sec. 565; Stratton v. Graham, 68 Cal. 168, 8 Pac. 710; Hoyt v. Stark, 134 Cal. 178, 66 Pac. 223; Centerville & K. Irrigation Ditch Co. v. Bachtold, 109 Cal. 111, 41 Pac. 813; Buhman v. Nickles, etc., Bros., 1 Cal. App. 266, 82 Pac. 85; Robinson v. Templar Lodge, 114 Cal. 41, 45 Pac. 998; Rose v. Mesmer, 134 Cal. 459, 66 Pac. 594; In re Skerrett’s Estate, 80 Cal. 62, 22 Pac. 85; Rauer’s, etc., Co. v. Standley, 3 Cal. App. 44, 84 Pac. 214; City of Bozeman v. Nelson, 73 Mont. 147, 237 Pac. 528.

MR. CHIEF JUSTICE ADAIR and MR. JUSTICES ANGST-MAN, ANDERSON, DAYIS and BOTTOMLY, concur.