103 N.W. 747 | N.D. | 1905
Defendants appeal from a judgment of the district court dismissing an appeal to that court from a judgment of a justice of the peace.
On February 9, 1903, defendants appealed to the district court, on- questions of law only, from a judgment rendered against them in justice court. It is conceded that the appeal was regular in all respects. On May 27, 1903, the district court was in session, and it was discovered that the justice’s .transcript had not yet been filed with the clerk of the district court. Thereupon the respondent, without notice, moved in open court for an order dismissing the appeal for want of prosecution. Action on that motion was deferred until next day. The following morning (May 28th) at 9 o’clock the transcript of the justice was filed with the clerk. In the afternoon of that day respondent again moved to dismiss the appeal on the ground that the transcript was not filed in time. The motion was granted.
The order was erroneous. The district court had acquired jurisdiction of the case by a regular appeal, and the transcript upon which the appeal was to be heard was before the court. So far as appears, the respondent had suffered no injury, inconvenience, or delay of hearing by the failure of the transcript to reach the clerk’s office at an earlier date. Section 6771a, Rev. Codes 1899, provides, among other things, that the district court “may order a dismissal of the appeal if the same has not been duly perfected, or the record of the justice has not been- transmitted and no application is made by the appellant for an order requiring the justice to certify and transmit the proceedings.” It is clear that this section does not make it the mandatory duty of the district court to dismiss an appeal for delay in the transmission of the transcript. It simply vests a discretionary power in the court to dismiss
The judgment is reversed, and the district court will reinstate the appeal.