31 P. 802 | Idaho | 1892
The respondent moves, under rule 2 of the rules of this court, to dismiss this appeal, on the ground, that the transcript of record was not filed and served within the time prescribed by paragraph 7 of rule 4 of the rules of •this court. The appellant appears, and resists said motion, and presents an affidavit in support of his position, setting forth the facts in regard to the settlement of the bill of exceptions and the filing and service of the transcript of record.
Rule 2, under which this motion is made, declares, among other things, that, if the transcript of record is not filed within the time prescribed by paragraph 7 of rule 4, the appeal may be dismissed, on motion, without notice, on the first Monday of the term during which the cause is subject to call. Paragraph 7 of rule 4 declares, among other things, that the transcript of record, when required to be printed by the rules of this ■court, shall be filed and served within sixty days after the appeal is perfected, and the bill of exceptions' settled. The points for us to determine, then, are the dates when the appeal was perfected, and the bill of exceptions settled, and whether the transcript was filed and served within sixty days after latest date.
The record shows that the appeal was perfected by filing the proper undertaking not later than the ninth day of June, 1892; and it is shown by the affidavit of appellant that the trial judge