Intermountain Ass'n of Credit Men v. Rexburg Farmers Society of Equity, Ltd. , 38 Idaho 121 ( 1923 )

WILLIAM A. LEE, J.

— Respondent moves to strike from the transcript on appeal the bill of exceptions and dismiss the appeal.

In support of both motions it assigns numerous reasons, but in view of the record, and one of the grounds assigned for a dismissal of the appeal, we do not deem it necessary to consider the motion to strike.

The third assignment in support of the motion to dismiss the appeal is that “the transcript on appeal was not filed with the supreme court or the clerk thereof within the time provided by law and the rules of said court for the filing of said transcript.”

The judgment was entered September 23, 1922, and the appeal therefrom was perfected December 20th thereafter. On March 27, 1923, counsel for appellant applied for and obtained from the Chief Justice an order for an extension of time in which to file and serve a completed transcript on appeal. The affidavit in support of the application for this order assigns no reason for the delay except that the clerk of the district court “has been so rushed with business that the transcript on appeal has not been made up and that an extension of sixty days is necessary for the purpose of preparing the transcript.”

We have repeatedly held that an application for an extension of time in which to file the record on appeal in this court must be obtained before the time has expired, or some sufficient reason shown why the application was not made within this time, and further, that an order granting an extension of time for the filing of the record on appeal, if made by any justice of this court after the time has expired, is made without prejudice to the right of the adverse party to move for a dismissal of the appeal. Rule 26 of this court requires the application for an extension of time to be made within ninety days after perfecting the appeal, and if such order is not obtained before this time expires, the appeal will be subject to dismissal, unless appellant shows some justification for not having obtained the order within the proper time. This appeal should be dismissed, under the authority of T. W. & L. O. Naylor Co. v. Bowman, 36 Ida. 211, 209 Pac. 1071; H. B. Lake & Co. v. Bales, 36 Ida. 142, 210 Pac. 396; Gemmell v. Collins, 36 Ida. 416, 210 Pac. 738; Dye v. Moscow State Bank, 36 Ida. 464, 212 Pac. 870; Gates v. Todd, Commercial Co., 36 Ida. 784, 213 Pac. 1017; California Gulch, Placer Min. Co. v. Patrick, 37 Ida. 661, 218 Pac. 378.

It follows that if the appeal is dismissed, a consideration of the motion to strike the bill of exceptions would serve no useful purpose.

Budge, C. J., and McCarthy and Dunn, JJ., concur.