Doust v. Rocky Mountain Bell Telephone Co.
Doust v. Rocky Mountain Bell Telephone Co.
Opinion of the Court
This action was brought by the respondent against the Rocky Mountain Bell Telephone Co. and E. S. Crane to recover on a check issued by the Telephone Co. to the said E. S. Crane, for the sum of $846.65. Judgment was entered against the Telephone Co. and said Crane for the sum of $893.50, with interest thereon from the date of the judgment. An appeal from the judgment and the order denying a new trial was taken by the Telephone Co., in which the said Crane did not join, and no notice of the appeal was served on him.
Counsel for respondent move to dismiss the appeal on the ground that no notice of appeal had been served on the de
It appears from the transcript that numerous amendments were offered to the proposed statement on motion for a new trial, and the certificate of the judge shows that the amendments were allowed and the statement settled “and ordered to be engrossed” by the trial judge. This court has repeatedly held that where numerous amendments have been offered to a proposed statement on motion for a new trial, that the amendments as allowed in connection with the proposed statement must be engrossed before it is settled as a complete record. (Pence v. Lemp, 4 Ida. 526, 43 Pac. 75; Hattabaugh v. Vollmer, 5 Ida. 23, 43 Pac. 831; Crowley v. Croesus G. & C. M. Co., 12 Ida. 530, 86 Pac. 536; 2 Spelling on New Trial and App. Procedure, sec. 447.) There is not a proper certificate to the transcript showing that it contains all of the papers, records and files used by the trial judge in passing upon the motion for a new trial. The transcript, on an appeal from the order denying a new trial, must contain all of the records and papers considered by the judge in passing upon such motion. In Steve v. Bonners Ferry Lumber Co., 13 Ida. 384, 92 Pac. 363, the court in passing upon the question now under consideration, said:
“Under the provisions of secs. 4443, 4820 and 4821 of the Revised Statutes of 1887, it is essential that one who appeals from an order granting or denying a motion for a new trial should furnish the appellate court with a proper certificate identifying the papers, records, files, and other matter presented to and used by the trial judge upon the hearing and consideration of such motion, and, upon failure on the part of the appellant to furnish such certificate, his appeal from the order granting or refusing the motion will be dismissed.”
The motion must therefore be -sustained on the ground that the transcript fails to contain the proper certificate, and that no notice of appeal was. served on one of the adverse parties. The appeal is therefore dismissed, with costs in favor of the respondent.
Reference
- Full Case Name
- EDWIN DOUST v. ROCKY MOUNTAIN BELL TELEPHONE CO., and E. S. CRANE
- Cited By
- 10 cases
- Status
- Published
- Syllabus
- Motion to Dismiss Appeal — Engrossed Statement — Settlement op— Certificate to Transcript — Motion for a New Trial — Papers Used on — Identification of — Adverse Party — Service of Notice of Appeal. 1. Where numerous amendments have been allowed to a proposed statement on motion for a new trial, the statement should not be certified by the judge until the proposed statement and all amendments allowed have been engrossed. 2. On an appeal from an order, it must appear that the transcript contains all of the papers, records and other documents used by the trial judge or court on the hearing of such motion. 3. Where a joint judgment is rendered against two defendants, and one of them appeals and the other does not, the notice of appeal must be served on the latter, under the provisions of sec. 4808, Rev. Stat., he being an adverse party within the provisions of said section. (Syllabus by the court.)