Jacobs v. Shenon

| Idaho | Feb 18, 1895

MOKGAN, C. J.

(After Stating the Facts). — This affidavit, showing mistakes of attorney in regard to rules of the court, if of any force at any time, should have been presented to the court on the hearing of the motion to dismiss appeal. It comes too late in support of a motion to reinstate. The case of Welch v. Kenney, 47 Cal. 414" court="Cal." date_filed="1874-07-01" href="https://app.midpage.ai/document/welch-v-kenney-5438241?utm_source=webapp" opinion_id="5438241">47 Cal. 414, is in point. In that ease the transcript was not filed in time, the appeal was dismissed, and appellant made a motion to set aside the order of dismissal, and filed affidavit of facts tending to show excuse for'the default of appellant. The court says that, if there are circumstances which excuse the default, they must be shown by affidavit at the time the motion to dismiss is made, and cannot be heard after the motion to dismiss has been granted, and on a motion to set aside the order of dismissal. There should also be an affidavit or some showing of merits in the appeal. In Hagar v. Mead, 25 Cal. 599, the court says that, on motion- to reinstate cause once dismissed by reason of laches in filing of transcript under the rules, the affidavits should show that in the opinion of counsel, at least, there are substantial errors in the record, which ought to be corrected by this court. In the case at bar no effort is made to show that there is any apparent error in the trial or hearing of the cause in the court below. We think, in order to reinstate an appeal once dismissed, the appellant should show such a condition of the record as would indicate that there was apparent error in the proceedings of the lower court. No effort is made to do so.

This cause was before the supreme court on another appeal (Jacobs v. Shenon, 3 Idaho, 374" court="Idaho" date_filed="1892-03-04" href="https://app.midpage.ai/document/state-v-obrien-5168041?utm_source=webapp" opinion_id="5168041">3 Idaho, 374, 39 Pac. 44), from a trial had therein in the court below; and, upon an examination of the transcript in the' original appeal and the transcript now brought up, there seems to be no error appearing in the latter. • The motion to reinstate must be denied, and it is so ordered. Costs awarded respondent. i

Sullivan and Huston, JJ., concur.