Palmdale Irrigation District v. Rathke

The Court. Motion to dismiss appeal. This is a proceeding under the act of March 16,1889 (Stats. 1889, [539]p. 212), to determine the validity of the organization of an irrigation district and certain orders for the issuance of bonds, etc.

Judgment in favor of the defendants was entered August 8, 1891, and notice of appeal therefrom was filed and served August 21st following. But the statute (p. 213, sec. 8) requires that the appeal in this class of cases shall be taken within ten days after entry of judgment, and therefore this appeal was not taken in time.

Appellants admit that it appears from the record that the appeal was not taken within ten days after the entry of judgment, but they show by affidavit that they had no notice of such entry until a day or two before the appeal was taken. The statute, however, does not require notice of the entry of judgment in order to set the time for appeal running.

Appellants also claim that respondents are estopped by their stipulation to the correctness of the transcript, and that the appeal has been duly perfected. But we understand this stipulation to mean nothing more than that the papers in the transcript are correct copies of the record, and that a sufficient undertaking was properly filed within five days after notice of appeal. In that sense it does not conflict with the proof afforded by the record that the appeal was not taken in time to confer jurisdiction upon this court to review the judgment of the superior court.

Appeal dismissed.