Schiller v. Small

40 P. 53, 4 Idaho 422, 1895 Ida. LEXIS 32

Opinion

HUSTON, J.

These are appeals from the same judgment and order denying motion for new trial. A motion to dismiss in each case is made upon the grounds: 1. That the appeal was not taken in time; 2. That no undertaking on appeal has been filed.

The action was for a foreclosure of a mortgage.- Decree was entered June 27, 1893. Notice of appeal was filed on June 29, 1894, and served on July 21, 1894. The appeal was not taken within the year prescribed by statute. The appeal was taken from both the judgment and the order denying motion for a new trial. The undertaking is conditioned for the payment of all damages and costs which may be awarded .against appellants “on the appeal,” without designating which appeal. This question has been so often and so recently decided by this court that it is strange we should be again called upon to repeat the decision. (McCoy v. Oldham, 1 Idaho, 465; Mathison v. Leland, 1 Idaho, 712; Eddy v. Van Ness, 2 Idaho, 101, 6 Pac. 115; Cronin v. Mining Co., 3 Idaho, 438, 32 Pac. 53.) Motion to dismiss allowed, with costs to respondents.

Morgan, C. J., and Sullivan, J., concur.