Robinson v. School District No. 61

209 P. 726, 36 Idaho 133

• Court: Idaho Supreme Court
• Decided: October 4, 1922
• Status: Published

Opinion

DUNN, J.'

This is an action for damages, brought originally in the probate court, for the wrongful discharge of respondent as a teacher in School District No. 61 in Bingham county. Appeal was taken by the district from the judgment and also from the order denying a new trial.

Respondent has moved to dismiss the appeal from the judgment on the ground that it was not taken within ninety days after the entry thereof. This motion is sustained by the record, and the appeal must therefore be dismissed.

He also moves to dismiss the appeal from the order denying a new trial on the ground that appellant has not substantially complied with Rule 24 of this court, which was at the time of the taking of the appeal, and has been for many years, as follows:

“The transcript or record on appeal shall show that there is attached to or made a part of, all orders made by the judge disposing of a motion for a new trial, or any other contested motion, a certificate substantially as follows, signed by the judge, clerk or attorneys, to wit:

“ ‘It is hereby certified that the following papers to wit: . ... all of which are of the records or files in this case, were submitted to the judge and by him used on the hearing of the motion for a new trial (or any other contested motion), and constitute all the records, papers and files used or considered by said judge on such hearing.’ ”

The certificate in this case states that ‘ ‘ There was used in the presentation of said motion the following: Records and files together with the exhibits and transcript °of reporter’s notes taken of the evidence produced at the hearing of said matter. ’ ’

Clearly, the certificate shown in the record does not substantially comply with this rule, and the motion must therefore be granted. (Lyons v. Lambrix, 33 Ida. 99, 190 Pac. 356; Smith v. Benson, 32 Ida. 99, 178 Pac. 480.)

For the reasons stated both appeals are dismissed, with costs to respondent.

McCarthy and Lee, JJ., concur.