239 P. 277 | Idaho | 1925
Lead Opinion
In this case judgment was entered October 16, 1923, in favor of the respondent, from which judgment an appeal was perfected on January 15, 1924. Respondent, by proper notice and motion filed in this court, has moved to strike the reporter's transcript from the files of this court for the reason and on the ground that same was never served upon respondent or its counsel in the manner or within the time required by law, or at all; that no application was ever made to have the same settled within the time required by law or the rules of this court; that no jurisdiction exists to settle the transcript; that appellants have been guilty of prejudicial delay in respect to said matters; and for the further reasons that the same has never been actually settled either by the judge who tried the cause or by any judge or court within the time required by law or the rules of this court, or at all, that the pretended settlement thereof indorsed upon said transcript is not an actual settlement of the same and is founded upon a misconception of an order of this court, and that the same has never been filed in the district court in which the said cause was tried and the same is not properly a part of the record in said cause.
The foregoing motion is supported by the affidavits of the attorneys for the respondent and the clerk of the district court of the tenth judicial district and upon certain correspondence between said clerk and the attorneys for appellants, as well as certain correspondence between the attorneys for the respondent and the attorneys for the appellants, and upon the records and files in the action. It is resisted upon the affidavit of one of the attorneys for the appellants and certain correspondence *495 had between said attorney and the attorneys for the respondent and upon the files in the action.
It appears from the record that the reporter's transcript of the testimony was lodged with the clerk of the district court of the tenth judicial district on April 21, 1924, and that on April 25, 1924, the clerk sent two copies of such transcript, bound together with an incomplete clerk's transcript, by express to the attorneys for the appellants, who received them the following day. On May 5, 1924, the attorneys for the appellants returned the transcripts to the clerk accompanied by a letter in which they suggested, to the end that the clerk's transcript be complete, that a certain alleged order for hearing in chambers be inserted in the clerk's transcript and further directed the clerk to insert the title and index pages and add his own certificate. This was done, and the reporter's transcript together with the clerk's transcript completed as requested was returned to the attorneys for appellants on May 10, 1924. On May 13, 1924, appellants attorney sent by express to one of the respondent's attorneys what they designated as a completed transcript, which had not been settled or submitted to the trial court for settlement, or theretofore been served on the attorneys for the respondent. It will therefore be observed that the reporter's transcript was received by counsel for appellants on April 26, 1924, and that it was not served upon counsel for the respondent until May 13, 1924, when it was included in what purported to be a completed transcript on appeal.
C. S., sec. 6886, subd. 2, provides that upon receipt of the reporter's transcript the clerk shall deliver two copies to the person procuring the same to be made, or his attorney, and such party or his attorney shall within five days from the receiptthereof, serve one copy on the adverse party or his attorney. The provisions of this sub-division of the statute have been construed by the court in the cases of Strand v. Crooked RiverMin. etc. Co.,
It further appears from the record that no timely application was made by appellants for the settlement of the reporter's transcript, the record disclosing the fact that the clerk of the district court by direction of appellants' counsel filed with the clerk of this court three copies of the transcript without having the same settled by the judge who tried the cause as required by C. S., sec. 6886, subd. 3, and only after motion had been made in this court for dismissal of the appeal did the appellants seek to have the transcript settled by the successor of the trial judge, and then not within the time required by law or the rules of this court.
By the striking of the reporter's transcript there is nothing before this court but the judgment-roll. No fundamental error appearing in such roll, the appeal should be dismissed, and is so ordered. Costs are awarded to the respondent.
William A. Lee, C.J., concurs.
Concurrence Opinion
The appeal in this case was perfected January 15, 1924. A reporter's transcript was lodged with the clerk April 21, 1924. It seems that a praecipe for record on appeal had been given to the clerk before this. On April 25th, the clerk sent two *497 copies of what from the correspondence would appear to be a clerk's transcript, including the reporter's transcript, to counsel for appellants. The appellants' attorneys kept this transcript over ten days, and then returned it to the clerk with suggested changes in the clerk's transcript. On May 10th, the clerk again sent two copies to appellants' counsel completed. These appellants' counsel then served upon counsel for respondent by express, with a letter suggesting no changes in the reporter's transcript, but reciting them as "two copies of the completed transcript." The only suggested change was as to something in the notice of appeal, which is no part of the reporter's transcript. A controversy arose between counsel. No steps were taken to have the reporter's transcript settled, and on September 29, 1924, on motion to dismiss the appeal, this court ordered "that the record on appeal be completed, served and filed and the motion to dismiss the appeal be held in abeyance to be submitted and considered when the case is submitted on the merits."
The appellants took no further steps to settle the reporter's transcript until October 2, 1924, and at no time asked or received any extension of time to file a clerk's transcript in this court. On November 29, 1924, the reporter's transcript was brought on for settlement, and settled by the Hon. Miles S. Johnson, Judge of the court, reciting: "By virtue of the order of the Supreme Court this transcript is settled. . . ."
Appellants' counsel contend that they had previously sent a copy of the incomplete clerk's transcript, including the unsettled reporter's transcript, to counsel for respondent, and were thus deprived of any way to serve for settlement a reporter's transcript earlier. They must have always had on hand their own copy of the reporter's transcript, of which they could have made use. Appellants have wholly misconceived the practice prescribed by statute for settling a reporter's transcript. The reporter's transcript was not served within five days, as provided by statute, nor within any reasonable time thereafter, nor has *498 any sufficient excuse been shown for the failure to serve it. The reporter's transcript was, therefore, stricken from the record.
The motion to dismiss the appeal involves also the clerk's transcript. As said, no extension of time was ever secured for filing this, and it was not filed in this court within the time prescribed by the rules, nor for a long time thereafter, the appeal having been taken on January 15, 1924, and the clerk's transcript filed in this court on December 8, 1924. No sufficient excuse is shown for this failure and negligence. The appeal should, therefore, be dismissed.
Wm. E. Lee and Givens, JJ., dissent from both of the foregoing opinions.
