Yeomans v. Lamberton , 29 Idaho 801 ( 1917 )

RICE, J.

In this case the decision of the trial court, together with the judgment, were signed and filed with the clerk on February 29, 1916. The notice of appeal was served and filed March 7, 1916, and the undertaking on appeal was filed on March 11, 1916. The judgment was entered on March 14, 1916. Respondent moves to dismiss the appeal for the reason that the appeal was perfected prior to the time of entry of the judgment and therefore was prematurely taken.

The statute under which this appeal was taken is sec. 4807, Rev. Codes, as amended by chapter 80, Sess. Laws 1915, p. 193, the material part of which section reads as follows: “An appeal may be taken to the supreme court from a final judgment .... within ninety days after the entry of such judgment. ’ ’

This court has held that under this statute it is essential that a judgment be entered before an appeal therefrom may be perfected. (Vollmer v. Nez Perces County, 7 Ida. 302, 62 Pac. 925; Santti v. Hartman, ante, p. 490, 161 Pac 249.)

This construction of the statute is supported by many authorities in other jurisdictions, among which the following may be mentioned: Estate of Dunphy, 158 Cal. 1, 109 Pac. 627; Wood, Curtis & Co. v. Missouri etc. R. Co., 152 Cal. 344, 92 Pac. 868; State v. Taylor, 33 Mont. 364, 83 Pac. 597; Robinson v. Salt Lake City, 37 Utah, 520, 109 Pac. 817; In re Christensen’s Estate, 77 Wash. 629, 138 Pac. 1; Martin v. Smith, 11 S. D. 437, 78 N. W. 1001; Anderson v. Carlson, 85 Neb. 711, 124 N. W. 145.

We are urged to reverse the rule in this state and hold that an appeal may be taken after the “rendition”.of a judgment and within ninety days after its entry. We are of the opinion that the construction of the statute given above should be considered as settled, and if any change in the method of taking an appeal is to be made, it should be made by the legislature.

The appeal having been perfected before the entry of judgment, no jurisdiction is thereby conferred upon this court, and the appeal must be dismissed. Costs awarded to respondents.

(February 6, 1917.) Budge, C. J., and Morgan, J., concur.