Opinion
No. 5326.
December 23, 1929.
APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. B.S. Varian, Judge.
Respondent moves to strike appellant's brief and the transcript. Motion denied.
T.A. Walters and Walter Griffiths, for Appellant.
Charles F. Reddoch, Wm. M. Morgan and J.B. Eldridge, for Respondent.
Counsel cite no authorities on point decided.
Respondent moves to strike appellant's brief and the transcript because respondent claims that as to the transcript the only appellant who has appealed ( Eldridge v. Payette-Boise Water Users' Assn., 48 Idaho 182, 279 P. 713) has an appeal only from and upon the judgment-roll; and as to the brief that it still carries in its title the name of the appellant heretofore eliminated from the appeal ( Eldridge v. Payette-Boise Water Users' Assn., supra) and that appellant enumerates and relies upon errors not now available to him.
The determination of respondent's contention as to the limited scope of appellant's appeal requires reference to and examination of the transcript. As to the brief, the consideration of the scope of appellant's appeal is a matter, in view of the record here and the subject matter of this appeal, to be disposed of upon the appeal on its merits rather than by this motion to strike.
Respondent has called to our attention no case nor have We found any to the effect that a motion to strike the brief and transcript is the proper procedure to thus limit appellant's rights.
The motion is therefore denied. Costs on this motion to await the disposition of the appeal on its merits.
Budge, C.J., and T. Bailey Lee and Wm. E. Lee, JJ., concur.
Varian, J., took no part in this decision.