Opinion
No. 5302.
July 24, 1929.
APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. W.F. McNaughton, Judge.
Motion to dismiss appeal because of nonservice of transcript. Appeal dismissed.
Ezra R. Whitla, for Appellant.
James F. Ailshie, W.B. McFarland and Robert H. Elder, for Respondents.
Counsel file no briefs.
Both respondents have moved to dismiss the appeal because the reporter's transcript was never served on the Kootenai Power Company, nor any notice given it or its attorney of the service of the transcript on the other respondent, as provided in C. S., sections 6886 and 7166, and rule 28 of this court.
Appellant urges that the motion to dismiss filed by the city of Coeur d'Alene was never served on appellant or its attorney, and there is a sharp conflict as to whether such service was made prior to the presentation of this matter to this court.
It is unnecessary to decide whether such service was made because a notice of the motion to dismiss was given by the other respondent and properly served.
This court has held that failure to serve in compliance with the statutes deprives this court of jurisdiction ( Strand v. Crooked River Co., 23 Idaho 577, 131 P. 5; Bohannon Dredging Co. v. England, 30 Idaho 721, 168 P. 12; Columbia Trust Co. v. Balding, 34 Idaho 579, 205 P. 264), and that where the statutes were not complied with as to service of the transcript the appeals would be dismissed. ( Coon v. Sommercamp, 26 Idaho 776, 146 P. 728; Boise-Payette Lumber Co. v. McCarthy, 31 Idaho 305, 170 P. 920; Fort Misery Highway District v. State Bank, 41 Idaho 491, 239 P. 277.)
The precise point involved here, that is, where service was made on one party but not on the other, was not in any of the above cases. It would seem, however, that the rule where notice of appeal has not been served on all the adverse parties would apply. In such circumstances it has been repeatedly held that the appeal will be dismissed, though on motion of the party served. ( Johnston v. Bronson, 19 Idaho 449, 114 P. 5; Berlin Machine Works v. Bradford, 21 Idaho 669, 123 Pac. 637; Chapman v. Boehm, 27 Idaho 150, 147 P. 289; Glenn v. Aultman, 30 Idaho 727, 167 P. 1163; Lind v. Lambert, 40 Idaho 569, 236 P. 121; Cook v. Miller, 30 Idaho 749, 168 P. 911; Abel v. Noble Estate, 43 Idaho 391, 252 P. 493; Lambert v. Paysee, 45 Idaho 564, 263 P. 1001.)
We can see no logical distinction. Appeal dismissed.
Budge, C.J., and T. Bailey Lee and Varian, JJ., concur.
Wm. E. Lee, J., dissents.