Volume 37 — Idaho Reports

<p>Appeal in Criminal Case — Motion to Dismiss — Failure to Furnish Transcript.</p> <p>Lapse of time in filing a transcript on appeal in a criminal case is not jurisdictional and it rests in tlie discretion of tlie court to dismiss the appeal or enlarge the time for filing the transcript.</p>

Hon. H. F. Ensign, Judge. Action to enforce claim for alimony. From judgment for plaintiff, defendant appeals. A foreign judgment, not reduced to judgment in this state is not a valid claim against the estate of a deceased person here, nor can an administratrix' be compelled to accept á certified copy of the' decree of a foreign court and allow it as a valid claim against the estate.

<p>APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. B. S. Yarian, Judge.</p> <p>Aetion in claim and delivery. Judgment for respondent against appellant.</p> <p>The second amended complaint did not state any facts sufficient to constitute a cause of action against the appellant for want of material allegations, bringing the case within the provisions and restrictions of C. S., sec. 5691. (Portland Seed Go. v. Clark, 35 Ida. 44, 204 Pac. 146; Brown v. Feeler, 35 Ida. 57, 204 Pae. 659.)</p> <p>C. S., see. 7936, par. 3, only forbids a claimant from testifying against the administrator of an estate of a deceased person. The plaintiff’s testimony was clearly admissible against the appellant, who was a eodefendant and against whom a several judgment could be and was rendered. (Shain v. Forbes, 82 Cal. 577, 23 Pac. 198; Nesbit v. Swallow, 63 Colo. 194, 164 Pac. 1163, and cases cited; Cunningham v. Stoner, 10 Ida. 549, 79 Pac. 228.)</p> <p>The title to the hay in question passed to plaintiff when it was grown, harvested and stacked. It was then in condition for plaintiff to accept and nothing remained but measuring for the purpose of ascertaining the price. (24 R. C. L. 21, 22 (tit. “Saies,” sec. 283); Barber v. Andrews, 29 R. I. 51, 69 Atl. 1, 26 L. R. A., N. S., 1; Clinton Sheep Co. v. Ogee, 34 Ida. 22, 198 Bae. 675.)</p> <p>'This was a contract for the sale of specific goods and the seller was bound to grow, harvest and stack the hay in question for the purpose of putting it in deliverable state; the title passed when that was done. (O. S., sec. 5691, rule 2.)</p> <p>It was likewise a contract requiring the seller to deliver the goods or the hay in question at a particular place, to wit-, at the stack on the lands of the sellers, and the title passed when the hay reached the stack, which was the place agreed upon. (C. S., sec. 5691, rule 5.)</p>

Hon. IT. F. Ensign, Judge. Action on contract. Judgment for plaintiffs.

Hon. ¥m. A. Babcock, Judge. Application to district court for writ of mandate. Judgment for plaintiff, defendants appeal. There is no allegation in the complaint and application for a writ of mandate that the defendant, Twin Falls Canal Company, has sufficient water unappropriated to supply plaintiff with the desired amount or that the canal has sufficient capacity to carry it.

Hon. 'Win. A. Babcock, Judge. Action by plaintiff to recover money charged against his account by defendant bank. From judgment for defendant, plaintiff appeals. When a draft is made payable, and delivered to an impostor by the drawer of such draft, and the draft comes into the hands of an innocent purchaser for value and without notice, the drawer must stand the loss as between it and the innocent purchaser. (Hoffman v. American Exchange Nat. Bank, 2 Neb.

Hon. Wallace N. Scales, Judge. Action on contract to recover real estate broker’s commission. Judgment for defendant. The evidence established a prima facie ease for plaintiff. (Kroeich v. Empire Mill Co., 9 Ida. 277, 74 Pae. 868; Culver v. Kehl, 21 Ida. 595,. 123 Pac. 301; Kansteiner v. dyne, 5 Ida. 59, 46 Pae. 1019; Idaho Mercantile Co. v. Kalanqmn, 7 Ida. 295, 62 Pac. 925.) The court should have submitted the case to the jury for consideration.

<p>Appeal — Dismissal eor Failure to File Transcript — Second Appeal While First is Pending.</p> <p>1. An appeal in a eivil action is subject to dismissal for failure to file transcript within time limited by the rules, or an extension thereof.</p> <p>2. If the first appeal, even though valid at the time the second is taken, is thereafter abandoned or allowed to lapse, if the second has been taken in good faith and within the statutory time, and respondent is not prejudiced thereby, such second appeal will not be dismissed on the ground that a valid appeal was pending at the time the second was taken.</p>

<p>MOTIONS to dismiss first and second appeals from same judgment.</p>

Hon. Wallace N. Scales, Judge. Action to foreclose a chattel mortgage. From judgment for plaintiffs, defendants appeal. Property acquired by money borrowed during coverture is presumed to be community property.

<p>Appeal and Error — Time Within Which Record on Appeal must be Piled in This Court Under Rule 26.</p> <p>Where the record on appeal is not filed in this court within the ninety days prescribed by Rule 26, or some extension of this time obtained in the manner prescribed by Rule 28, the appeal is subject to be dismissed upon motion.</p>