Schlehuber v. Pacific & Idaho Northern Railroad , 50 Idaho 242 ( 1930 )

Motion is made to dismiss this appeal for failure to file transcript of the record in this court within the time provided by rule 23 of this court. The appeal was perfected on February 1, 1930. The reporter's transcript was lodged and copies delivered to counsel for appellant on March 29, 1930, who within ten days thereafter (instead of the five days provided by the rule) served it upon counsel for respondent. The record discloses no further action ever taken by appellant's counsel, and no extension was sought or procured in this court of the time within which to file a transcript of the record which was due within sixty days after the reporter's transcript was delivered to him. The appeal was reached upon the calendar and set for hearing on December 15, 1930, at which time the present motion was presented.

Counsel for appellant relies upon an oral understanding had with counsel for respondent during the seven months succeeding the service of the reporter's transcript that at some later time a stipulation would be made designating errors in the transcript. The death of counsel for respondent occurred on November 11, 1930, and his successor knows nothing of such oral understanding. But even if the oral understanding were admitted, no valid excuse for the delay would appear; there has been such a lack of diligence in getting the case ready for presentation in this court that the appeal must be dismissed. (Gerken v. Davidson Grocery Co., 48 Idaho 75, 279 P. 422;Grandview State Bank v. Thams, 45 Idaho 566, 263 P. 1000.)

Appeal dismissed.

Givens, C.J., and Lee, Varian and McNaughton, JJ., concur.