People ex rel. McCarty v. Hunt

1 Idaho 371

Opinion

Noggle, C. J.,

delivered the opinion of the court,

Lewis and Whitson, JJ., concurring.

A motion is made to dismiss the appeal in this case, by the respondent, because no undertaking has been filed since filing the notice of appeal. In the case of SMssler v. Grooles, ante, this court decided, at the present term, that three things are necessary to perfect an appeal, so as to give the supreme court jurisdiction: 1. The filing of a notice of appeal; 2. The service of a copy of such notice; and, 3. The filing of the undertaking required by section 296 of the civil practice act, which undertaking must be filed within five days after the filing of the notice of appeal. The undertaking must be filed after the filing of the notice of appeal, and within five days.

It is not legal to file the undertaking before the notice is filed. The record in this case shows that an undertaking was placed on file with the clerk of this court some two days before the notice of appeal ivas filed. No appeal was pending wrhen the undertaking was filed, and since the notice of appeal was filed no undertaking has been filed, and for the purposes of an appeal in this case there is no undertaking on file.

In all civil cases appealed to this court, such an undertaking as is required by section 296 of the civil practice act must be filed after the notice of appeal is filed, and within five days, or the supreme court acquires no jurisdiction; and because no such undertaking has been filed since the time of filing tbe notice of appeal, tbe motion must be granted, and tbe appeal dismissed. (Hastings v. Halleck, 10 Cal. 31; Elliott v. Chapman, 15 Id. 383; Shaw v. Randall, Id. 384.)

For these reasons tbe appeal in tbis case is dismissed.