Melquist v. Board of Commissioners

261 P. 774, 45 Idaho 296, 1927 Ida. LEXIS 36

• Court: Idaho Supreme Court
• Decided: December 8, 1927
• Docket: No. 5103.
• Status: Published

Opinion

T. BAILEY LEE, J.

The board of county commissioners of Bonner county entered its order allowing certain claims against the county in favor of respondent, Ingram. Charles Melquist, a taxpayer of said county, appealed from the order to the district court, where after a trial de novo judgment was entered sustaining the board’s allowance. From that judgment Melquist has appealed to this court. Respondent board has moved to dismiss the appeal upon the ground that no service of the notice of appeal has been had upon respondent Ingram, a party who will be adversely affected by a reversal of the judgment appealed from. This motion recites that it is based, among other things, upon an annexed certificate of the clerk of the district court of Bonner county. An inspection of such certificate, together with the voluntary admissions and declarations in appellant’s brief, make unnecessary any determination of the question of service on respondent Ingram. The certificate discloses that notice of appeal was filed May 10, 1927, and that no undertaking had been filed at the date of the cer tificate, October 11, 1927. Appellant admits that no undertaking has been filed, but seeks to avoid the failure by invoking the provisions of C. S., sec. 3510, pursuant to which, he declares, the district judge advised him no undertaking would be required. This section is restricted in its application to appeals from orders of the board to the district court. . It has no reference to appeals to the supreme court from judgments of the district court rendered on appeal from orders of the board. This latter procedure is exclusively governed by C. S., secs. 7152 and 7153; and, in case of appeal from such judgments, an undertaking must be given as in any other case on appeal to the supreme court. (Foresman v. Board of Commrs., 11 Ida. 11, 80 Pac. 1131.)

The only litigants exempted from giving such undertakings are those enumerated in C. S., sec. 7238, which has no application here. And C. S., see. 7143, expressly declares that an appeal is ineffectual, unless within five days after service and filing of the notice of appeal an undertaking or a waiver thereof in writing be filed. Compliance with this requirement is jurisdictional. (McCurtain v. Newton, 40 Ida. 401, 232 Pac. 565; Myers v. Harvey, 39 Ida. 724, 229 Pac. 1112; Kimzey v. Highland Livestock & Land Co., 37 Ida. 9, 214 Pac. 750.) And where it appears that the requirement has been ignored, this court will dismiss the appeal on its own motion. (McCurtain v. Newton, supra.)

Appeal dismissed. Costs to respondents.

¥m. E. Lee, C. J., and Budge, Givens and Taylor, JJ., concur.