Mahoney v. Board of County Commissioners , 8 Idaho 375 ( 1902 )

SULLIVAN, J.

— This is an appeal from a judgment of the district court of Shoshone county affirming the action of the board of county commissioners of said county authorizing the sheriff to appoint eight additional deputies. On the entry of said judgment a motion for a new trial was made, and denied by the court. This appeal is from said judgment and order denying the motion for a new trial, and was perfected eighty-eight days after the entry of said judgment.

A motion was made in this court to dismiss said appeal from the order denying a new trial on the ground that in an action brought under the provisions of sections 1776-1779 of the Be-vised Statutes, as amended by'the act of February 14, 1899, the law does not permit a party against whom judgment is entered to move for a new trial; that his remedy is to appeal. Said section 1779 is as follows: “Upon the appeal, the matter must be heard anew and the act, order or proceeding so appealed from may be affirmed, reversed or modified; and, from the decision of the district court, or judge, either party may, within five days, appeal to the supreme court. Either of said courts, or said judge, may make any rules necessary to a proper and speedy hearing in such appeals.” Said section provides that on appeals like the one at bar the matter must be heard anew. There is no provision of law authorizing a new trial to be granted in such cases as the one at bar. There is, therefore, no appeal from the order refusing to grant a new trial, and said motion must be sustained.

That leaves the ease for consideration on the appeal from the judgment. It is contended that under the provisions of section 4807 of the Bevised Statutes, the evidence cannot be reviewed on the ground that the decision is not supported by the evidence, unless the appeal is taken within sixty days after the entry of judgment, and that, as this appeal was not taken within that time, the evidence cannot be reviewed on this appeal. Said section, as amended, provides that an appeal may be taken to the supreme court from the district court from a judgment rendered on an appeal from an order, decision or action of the board of county commissioners within ninety days after the entry of the judgment, but that an exception to the decision or verdict on the ground that it is not supported by the evidence cannot be reviewed on an appeal from the judgment unless the appeal is taken within sixty days after the rendition of the judgment. That being so, and as this appeal was not taken within sixty days after the rendition of said judgment, the evidence cannot be reviewed on this appeal.

No error appearing on the face of the judgment-roll, the judgment must be affirmed, and it is so ordered. Costs are awarded to respondents.

Quarles, C. J., and Stoekslager, J., concur.