
    (December 15, 1904.)
    KOOTENAI VALLEY RAILWAY COMPANY v. KOOTENAI COUNTY.
    [78 Pac. 1080.]
    Appeals from Obdebs of County Commissioners — Piling Undeb-t a tit wo on Such Appeals not Jurisdictional.
    1. An appeal from an order of a board of county commissioners is perfected by serving upon tbe clerk of the board a notice of appeal as required by section 1777, as amended by act of February 14, 1899 (Sess. Laws 1899, p. 248), and the giving and filing an undertaking is not jurisdictional, and the appeal should not he dismissed for a failure to give an undertaking in the absence of an order of the district judge requiring such undertaking.
    (Syllabus by the court.)
    APPEAL from District Court in and for Kootenai Connty. Honorable Ralph T. Morgan, Judge.
    The Kootenai Valley Railway Company appealed from an order of the hoard of county commissioners of Kootenai county and its appeal was dismissed by the district court, from which order and judgment an appeal was taken to this court.
    The facts are the same as in the case of Great Northern By. Go. v. Kootenai County.
    
    M. J. Gordon and Charles A. Murray, for Appellant. >
    Failure to file transcript within the time prescribed by the rules of. the supreme court of this state is ground for dismissal of appeal, and yet, where the appellant was not at- fault, the court refused to dismiss an appeal for failure to file the transcript, and said: “A rule, or the construction of a rulé, which would deprive a party of his right of appeal by reason of the default of an officer of the court solely, would be more than inequitable. It would be arbitrary, tyrannical and unjust, and might be destructive of the end for which courts are established and maintained, .... the administration of law and justice.Under statutes and rules similar to ours, it has been uniformly held that, while failure to file a transcript is ground for the dismissal of the appeal, a delay may be excused.” (Westheinier v. Thompson, 3 Idaho, 418, 31 Pac. 797; Perkins v. Bridge, ante, p. 189, .77 Pac. 330; Mutual Life Ins. Go. v. Phinney, 178 U. S. 327, 20 Sup. Ct. Eep. 906, 44 L. ed. 1088; 2 Ency. of PI. & Pr. 246.)
    T. H. Wilson and Charles L. Heitman, for Eespondent,
    file no brief.
   AILSHIE, J. —

The facts in this case are identical with the facts as contained in the statement preceding the opinion in the ease of Great Northern Ry. Co. v. Kootenai County, ante, p. 379, 78 Pac. 1078, decided at this present term, and therefore the judgment of the lower court will be reversed for the same- reasons and on the same grounds as given in that case.

The judgment of the district court is reversed and the cause remanded, with directions to the trial court to reinstate the appeal as taken from the board of county commissioners, and permit the appellant to file such undertaking for security of costs as the judge of that court shall deem sufficient for such purpose.

Sullivan, C. J., and Stockslager, J., concur.  