Wolter v. Church

RICE, J.

This cause comes on at this time upon a motion to dismiss the appeal. Several grounds for dismissal are urged, but it will only be necessary to consider the one relating to the failure of the appellants to file and serve transcript within the time limited by rule 26 of the rules of this court.

In this case the judgment was entered by the trial court on the 23d day of October, 1916. The appeal was perfected on the 8th day of January, 1917, and on the 21st day of March this motion to dismiss the appeal was filed. At the time of the motion the transcript had not been filed and served, and no extension of time for filing and serving the same had been applied for or granted.

It has been decided in this state that failure to file and serve transcript on appeal within the time specified by the rules of this court does not divest this court of jurisdiction. (Stout v. Cunningham, 29 Ida. 809, 162 Pac. 928.)

By rule 29 such appeal may be dismissed without notice. A case so dismissed may be reinstated during the same term, upon good cause shown, on notice to the opposite party. In cases where the motion to dismiss for failure to file transcript within the time specified under rule 26 is made upon notice, and a showing is made in opposition to such motion, the showing should be sufficient to justify the court in reinstating the ease if it had previously been dismissed without notice. In the absence of such a showing the case will be dismissed.

The principal showing of diligence in this case consists in setting forth the effort of appellant’s attorney to procure the money from one of the appellants with which to pay the clerk and reporter for transcribing the record. The affidavit, however, sets forth that the clerk of the court and the official reporter did not require their fees in advance, but always informed the appellants’ attorney that he might get the money from his clients before they would require payment. The affidavit does not state that these officers misled him with regard to the preparation, filing and service of the transcript on appeal.

This showing would have been proper in support of an application for an extension of time within which to file the transcript. It does not present a sufficient excuse for failure to obtain an extension of time within the limit allowed by rule 26. It is not shown that appellants’ attorney ever sought to obtain an extension of time within which to file the transcript, nor is it shown that there was any excuse therefor, except that appellants’ attorney “may have relied too implicitly upon his past ability to get extensions of time for filing of transcripts, through stipulations with opposing counsel at any time.” Unless a valid'excuse be shown, an appellant relying upon a stipulation that the time for filing the transcript may be extended'must obtain such stipulation before the sixty days expire in order to show due diligence.

In this case we think the showing of due diligence is not sufficient, and that the appeal must be dismissed. Costs awarded to respondent.

Budge, C. J., and Morgan, J., concur.