23 S.D. 308 | S.D. | 1909
This case is before us on a motion to dismiss the .appeal on the ground of delay in prosecuting the same. ■
It is disclosed by the affidavit of one of the attorneys for the respondents: That the appeal was taken from the judgment and order denying a new trial, on the loth day of April, 1906. That .the sai,d cause was not placed on the October calendar for that ydar but on or about the Tst day of October, 1906, said appellant ah,d respondents by their respective attorneys entered into the following stipulation, omitting title: “It is hereby stipulated and agreed by and between the parties to the above-entitled action that said cause may be placed upon the calendar of sard court for the October, 1906, term and submitted to the court without oral argument upon printed briefs. lit is further agreed that said appellant shall serve arid file his printed abstract and brief in said cause on or before the 10th day of November, 1906, and that said respondents shall have until the 20th day of December, 1906, within which to prepare '.and serve their amended abstract and printed brief.’’ That said appellant has never served or filed a printed abstract or brief on said appeal as provided by said stipulation. .One of the attorneys for the appellant files an affidavit, in which he claims -that, subsequently to the making of the written stipulation, there were oral agreements between the counsel for the respondents, who makes the affidavit on .the pant of the respondents and himself, giving the appellant further time in which to file and serve his abstract and briefs; but the counsel for the respondents does not admit that .there were any such oral stipulations, and denies the same.
In view of the provisions of section 699, Rev. Pol. Code, which provides as follows: “An attorney and counselor has power: * * * (2) to bind his client to any agreement in respect to any proceeding within the scope of his propep duties 'and powers; but no evidence of any such agreement is receivable except the statement of the attorney himself, his written agreement signed and filed with the clerk, or of an entry thereof upon the records of the count”— this court cannot consider the oral stipulations claimed to .have been made by the attorney of the appellant, as the respective counsel differ as to their recollections regarding such oral stipulations.
In view of the fact of the omissi-on of the appellant to file and serve his abstract and briefs prior to the October term, and the delay, of the appellant in filing and serving his. abstract and briefs under the stipulation entered into, the respondents are clearly en