Gulf, Colorado & Santa Fe Railway Co. v. Edwards

Stayton, Chief Justice.

The appeal in this cause was perfected more than twenty days before the time set for cases belonging to the assignment to which it belongs. Within a week after the appeal was perfected a transcript complete save a few verbal inaccuracies was delivered to appellant’s counsel.

On November 14 a certificate for affirmance was filed, and on this on November 27 the judgment was affirmed. On December 1 the motion now before us to set aside the judgment affirming the judgment of the court below was filed. The motion is based on “unavoidable absence and other engagements of its counsel,” of whom there are three. How the absence of counsel became unavoidable is not shown, what other engagements counsel had are not stated, and there is no offer made to file the transcript at the present term and submit the cause.

No sufficient reason for not prosecuting the appeal to the present term is shown, and the purpose of the statute in permitting judgments to be affirmed on certificate when the party whose duty it is to file the transcript fails to do so, is to enable the appellee or defendant in error ta protect himself against unnecessary delay.

Had the transcript been filed even since the affirmance, or offered with proposition to submit the cause for decision during the present term, the application would be entitled to more favorable consideration. This is not done, and the application to set aside the judgment in this court heretofore rendered not showing that by the use of reasonable diligence the transcript might not have been filed in proper time, this motion must be overruled.

It is so ordered.

Motion overruled.

Opinion December 14, 1888.