People's Savings & Trust Co. v. Allen

265 P. 705, 45 Idaho 781, 1928 Ida. LEXIS 42

• Court: Idaho Supreme Court
• Decided: March 23, 1928
• Docket: No. 5001.
• Status: Published

Opinion

BRINCK, Commissioner.

The facts are somewhat similar to those involved in People’s Savings & Trust Co. of Pittsburgh v. Rayl, ante, p. 776, 265 Pac. 703. In this ease, however, the only question is as to the sufficiency of an undertaking on appeal filed upon the day after notice of appeal was mailed to counsel for respondent. It was a proper case for service by mail; but respondent relies upon the fact that the transcript shows service of notice only by a written acceptance of date February 9, 1927; whereas, the undertaking was filed February 8, 1927. The affidavit on behalf of appellant, filed in this court upon the motion to dismiss, and which was undenied, shows that the notice was properly mailed to counsel for respondent on February 7, 1927.

I recommend that this motion be denied on authority of People’s Savings & Trust Co. of Pittsburgh v. Rayl, ante, p. 776, 265 Pac. 703.

The foregoing is approved as the opinion of the court and the motion to dismiss the appeal is denied.

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