35 Wn.2d 787, PEOPLES NATIONAL BANK OF WASHINGTON IN SEATTLE, Respondent, v. S. D. POTTER et al., Appellants

[No. 31169.      Department One.           Supreme Court      February 28, 1950.]

PEOPLES NATIONAL BANK OF WASHINGTON IN SEATTLE,
           Respondent, v. S. D. POTTER et al., Appellants.1

[1] APPEAL AND ERROR - REQUISITES AND PROCEEDINGS - APPEAL BONDS - TIMELY FILING - NECESSITY. The filing of an appeal bond within five days after giving notice of appeal, as required by Rem. Rev. Stat., 1721, and Rule of Supreme Court 5(4), is mandatory, and a failure to comply requires a dismissal of the appeal.

Motion to dismiss an appeal for lack of timely filing of an appeal bond. Granted.

Edwards E. Merges, for appellants.

Macbride, Matthews & Hanify and Thomas H. Macbride, for respondent.

PER CURIAM. -

Respondent has presented a motion asking that the appeal be dismissed. The motion is based upon the ground that the appeal bond was not filed within the time provided by the rules of this court and the statutes of the state of Washington which require that an appeal bond be filed with the clerk of the superior court at or before the time that a notice of appeal is given or served, or within five days thereafter. See Rem. Rev. Stat., 1721, and Rule of Supreme Court 5 (4), 18 Wn. (2d) 4-a.

The transcript discloses that appellants served and filed their notice of appeal May 17, 1949, and their cost bond on June 8, 1949. In so filing, they failed to comply with the rule and statute.

[1] In some seventeen cases, this court has held that the filing of an appeal bond as required by the statute and rule is mandatory, and that a failure to comply requires a dismissal of the appeal. Based upon those cases, among which are Anderson v. Taylor, 152 Wash. 532, 278 Pac. 412; Surety Finance Co. v. Prinz, 170 Wash. 379, 16 P. (2d) 613, and Elmore v. Elmore, 16 Wn. (2d) 562, 134 P. (2d) 466, we grant respondent's motion and dismiss the appeal.

1Reported in 215 P. (2d) 438.