Roddy v. State

135 P.2d 298, 64 Idaho 653, 1943 Ida. LEXIS 29

• Court: Idaho Supreme Court
• Decided: March 19, 1943
• Docket: No. 7054.
• Status: Published

Opinion

DUNLAP, J.

Respondents have moved to dismiss the appeal in this action, alleging it was not filed with the clerk of the trial court within ninety days after the entry and filing of the judgment on April 10, 1942. Under the provisions of Sec. 11-201, I. C. A., an appeal from a final judgment must be taken within ninety days after the entry of such judgment. Sec. 7-1105,1. C. A., provides that a judgment shall be deemed to be entered when, duly rendered, it is deposited in the office of the clerk of the court with the proper officer for entry. (West States Mortgage Loan Co. v. Hurst, 41 Ida. 80, 237 P. 1107.)

The motion was submitted on affidavits and briefs.

The following appears from the record: The judgment was dated April 8, 1942, and filed April 10, 1942. The notice of appeal was dated July 7, 1942. A copy of the notice of appeal was deposited in the postoffice at Boise, Idaho, on July 8, 1942, in a sealed envelope with postage thereon prepaid, and directed to Wm. D. Keaton, attorney for respondents, at his residence and postoffice address at St. Maries, Idaho. Proof of this service is by affidavit which was filed July 10, 1942. A copy of the notice of appeal bearing date July 7, 1942, was transmitted by Western' Union from Boise, Idaho, to the clerk of the district court from which the appeal was taken, under date of July 8th, 1942, and was filed by the said clerk on the 9th day of July, 1942.

The two notices so served, were identical in substance.

Objection to the telegraphed copy is based on the ground it did not contain the signatures of' appellants’ attorneys, which were entirely typewritten. It appears from the affidavit of the attorney general, one of appellants’ attorneys, that the telegraph company was authorized by him to affix the names of appellants’ attorneys to said notice of appeal, and the names of said attorneys were so placed thereon by said company pursuant to such authorization. Such typewritten signatures were proper signatures under the showing in this case. (58 C. J., p. 720, Sec. 5; p. 726, Sec. 12; p. 729, Sec. 17; Robinson v. St. Maries Lbr. Co., 32 Ida. 651, 186 P. 923.)

Respondents further contend no service of the notice of appeal was made on them because the particular notice telegraphed to the clerk was not served on them. This contention is without merit. (Sec. 11-202, I. C. A.; Mendini v. Miller, 47 Ida. 822, 276 P. 85.)

Neither is there any merit in the contention the service of this notice on thé clerk could not be made by telegraph. (Sec. 12-507,1. C. A.)

It appears the notice of appeal was duly filed within ninety days from the date of the entry of the judgment. Motion to dismiss is denied.

Holden, C.J., Ailshie and Givens, JJ., concur.