Iowa State Savings Bank v. Twomey

| Idaho | Nov 2, 1918

BUDGE, C. J.

The appeal in this case was perfected by filing notice and undertaking on .appeal on January 31, 1917. The transcript was not filed, however, until April 8, 1918, more than fourteen months after the appeal had been perfected, notwithstanding the fact that Rule 26 of the rules of the supreme court then in effect provided that:

“In all eases where an appeal is perfected, .... transcripts of the record (showing the date of filing the undertaking on appeal) must be served upon the adverse party and filed in this court within sixty days after the appeal is perfected.....”

Appellant in his brief, upon respondents’ motion to dismiss, cites Stout v. Cunningham, 29 Idaho 809" court="Idaho" date_filed="1917-01-19" href="https://app.midpage.ai/document/stout-v-cunningham-5170938?utm_source=webapp" opinion_id="5170938">29 Ida. 809, 162 Pac. 928, to the effect that appellant’s‘attorney should use due diligence and all reasonable means within his power to the end that the transcript may be filed within the time allowed under the rules or to procure an extension upon a proper showing before the expiration of such time. In that case this court said (29 Ida., p. 820):

“The appeal was perfected immediately upon the service of the notice of the appeal and the filing of the undertaking on appeal with the clerk of the trial court. It was the duty of the attorney for the appellant, under the statutes and rules above cited, not only to call upon the clerk and ask him if the transcripts would be ready within the time prescribed, but it was further the duty of the attorney for appellant to definitely ascertain from the clerk whether the transcript would be ready within the sixty days, and if not to secure an extension of time.”

Appellant maintains that the delay in filing the transcript was unavoidable, due to the illness of the reporter of the district court. Granting that such is the case, the appellant is not thereby excused from his duty to procure an extension of time within which to file the transcript.

In a recent case this court said: “The showing now made would have been proper, and perhaps sufficient, in support of such application. It is not sufficient as an excuse for failure to apply for an extension, and therefore due diligence does not appear.” (Hansen v. Boise Payette Lumber Co., ante, p. 600, 174 P. 703" court="Idaho" date_filed="1918-07-19" href="https://app.midpage.ai/document/hansen-v-boise-payette-lumber-co-5171188?utm_source=webapp" opinion_id="5171188">174 Pac. 703.)

An essential element of the diligence necessary to be shown is an application for an extension of time before the time limited by the rales expires, and a failure to apply for such extension establishes lack of diligence unless such failure is shown not to be due to fault upon the part of appellant.

The appeal is dismissed. Costs are awarded to respondent.

Morgan and Rice, JJ., concur.