Opinion
No. 7054.
March 19, 1943.
Appeal from the District Court of the Eighth Judicial District of Idaho, in and for Benewah County. Hon. Albert H. Featherstone, Presiding Judge.
Motion to dismiss appeal. Denied.
Bert H. Miller, attorney general, D.W. Thomas, Robert M. Kerr, Jr., Leo M. Bresnahan, J.R. Smead, M. Casady Taylor, Ariel L. Crowley and Charles S. Stout, assistant attorneys general, for appellants.
With respect to respondents' contention that the notice filed with the clerk of the district court is not sufficient as a notice of appeal, we wish to call the court's attention to the case of Robinson v. St. Maries Lumber Co., 32 Idaho 651, in which case a motion was made to dismiss the appeal on the grounds that the notice of appeal was not signed by appellants' attorneys, but the names of appellants' attorneys were affixed by other parties not attorneys resident in the State of Idaho, by authority of appellants' attorneys, and in which case the court in denying the motion to dismiss held:
"This contention cannot be sustained. It was shown by affidavit that Hogan authorized his name to be signed to the notice of appeal by Cannon Ferris. The signature of Hogan to the notice of appeal, made by his authority, is sufficient. ( Woods v. Walsh, 7 N.D. 376, 75 N.W. 767.)"
"A signature may be written by hand, printed, stamped, typewritten, engraved, photographed, or cut from one instrument, and attached to another." ( Smith v. Greenville County, S.C., 199 S.E. 416.)
See also the following authorities:
Hagen v. Gresby, 159 N.W. 3, 5, 34 N.D. 349 L.R.A. 1917 B 281; Hill v. United States, C.C.A. 228 Fed. 192; Toon v. Wapinitia Irr. Co., 243 P. 554, 557; Herrick v. Morrill, 33 N.W. 849, 850, 37 Minn. 250, 5 Am. St. Rep. 841.
Wm. D. Keeton for respondents.
In all cases the law has provided a proper officer and a known office in which he is to transact his official business. Regardless of the varying phraseology of the statutes, in contemplation of law a paper whose filing carries notice, or affects private rights, is filed only when deposited with the proper officer at his office for this especial purpose. It means a presentation to him at the proper place, and within the proper time . . . As was said in Tregambo v. Mining Company, 57 Cal. 501: "Filing a paper consists in presenting it at the proper office and leaving it there, deposited with the papers in such office . . ." When Sec. 940 of the Code of Civil Procedure speaks of filing the undertaking with the clerk, it means distinctly that it is to be presented for filing to him at his office.
To the same effect, see:
Dragon v. Trimburger, 42 Idaho 132, 243 P. 824; Kimzey v. Highland Livestock Land Co., 37 Idaho 9, 214 P. 750; Wallace v. McKenna, 37 Idaho 579, 217 P. 982.)
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, I. 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 Idaho 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 Idaho 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 Idaho 322, 276 P. 35.)
Neither is there any merit in the contention the service of this notice on the clerk could not be made by telegraph. (Sec. 12-507, I. 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.