In this case judgment was entered October 16, 1923, in favor of the respondent, from which judgment an appeal was perfected on January 15, 1924. Respondent, by proper notice and motion filed in this court, has moved to strike the reporter's transcript from the files of this court for the reason and on the ground that same was never served upon respondent or its counsel in the manner or within the time required by law, or at all; that no application was ever made to have the same settled within the time required by law or the rules of this court; that no jurisdiction exists to settle the transcript; that appellants have been guilty of prejudicial delay in respect to said matters; and for the further reasons that the same has never been actually settled either by the judge who tried the cause or by any judge or court within the time required by law or the rules of this court, or at all, that the pretended settlement thereof indorsed upon said transcript is not an actual settlement of the same and is founded upon a misconception of an order of this court, and that the same has never been filed in the district court in which the said cause was tried and the same is not properly a part of the record in said cause.
The foregoing motion is supported by the affidavits of the attorneys for the respondent and the clerk of the district court of the tenth judicial district and upon certain correspondence between said clerk and the attorneys for appellants, as well as certain correspondence between the attorneys for the respondent and the attorneys for the appellants, and upon the records and files in the action. It is resisted upon the affidavit of one of the attorneys for the appellants and certain correspondence *Page 495 had between said attorney and the attorneys for the respondent and upon the files in the action.
It appears from the record that the reporter's transcript of the testimony was lodged with the clerk of the district court of the tenth judicial district on April 21, 1924, and that on April 25, 1924, the clerk sent two copies of such transcript, bound together with an incomplete clerk's transcript, by express to the attorneys for the appellants, who received them the following day. On May 5, 1924, the attorneys for the appellants returned the transcripts to the clerk accompanied by a letter in which they suggested, to the end that the clerk's transcript be complete, that a certain alleged order for hearing in chambers be inserted in the clerk's transcript and further directed the clerk to insert the title and index pages and add his own certificate. This was done, and the reporter's transcript together with the clerk's transcript completed as requested was returned to the attorneys for appellants on May 10, 1924. On May 13, 1924, appellants attorney sent by express to one of the respondent's attorneys what they designated as a completed transcript, which had not been settled or submitted to the trial court for settlement, or theretofore been served on the attorneys for the respondent. It will therefore be observed that the reporter's transcript was received by counsel for appellants on April 26, 1924, and that it was not served upon counsel for the respondent until May 13, 1924, when it was included in what purported to be a completed transcript on appeal.
C. S., sec. 6886, subd. 2, provides that upon receipt of the reporter's transcript the clerk shall deliver two copies to the person procuring the same to be made, or his attorney, and such party or his attorney shall within five days from the receiptthereof, serve one copy on the adverse party or his attorney. The provisions of this sub-division of the statute have been construed by the court in the cases of Strand v. Crooked RiverMin. etc. Co., 23 Idaho 577, 131 P. 5, Bohannon Dredging Co.v. England, 30 Idaho 721, 168 P. 12, Boise-Payette Lumber Co. *Page 496 v. McCarthy, 31 Idaho 305, 170 P. 920, and Columbia TrustCompany v. Balding, 34 Idaho 579, 205 P. 264. These cases lay down the rule that the provisions of this subdivision with respect to time of service of the reporter's transcript of the testimony upon the adverse party are mandatory; that the failure to make service as therein required divests this court of the jurisdiction to consider on appeal the record or that portion thereof involved in the failure of service. The clerk of the court in this instance delivered the reporter's transcript to the appellants' attorneys on April 26, 1924. It was not until May 13, 1924, that such transcript was served by appellants upon counsel for respondent. The motion to strike the reporter's transcript should therefore be sustained.
It further appears from the record that no timely application was made by appellants for the settlement of the reporter's transcript, the record disclosing the fact that the clerk of the district court by direction of appellants' counsel filed with the clerk of this court three copies of the transcript without having the same settled by the judge who tried the cause as required by C. S., sec. 6886, subd. 3, and only after motion had been made in this court for dismissal of the appeal did the appellants seek to have the transcript settled by the successor of the trial judge, and then not within the time required by law or the rules of this court.
By the striking of the reporter's transcript there is nothing before this court but the judgment-roll. No fundamental error appearing in such roll, the appeal should be dismissed, and is so ordered. Costs are awarded to the respondent.
William A. Lee, C.J., concurs.