| Or. | Nov 29, 1915
delivered tbe opinion of tbe court.
It will be noticed that tbe motion to dismiss is not for want of a transcript, but because that document is insufficient. Respondent filed objections to tbe granting of further time for tbe completion of tbe transcript or tbe filing of an abstract. That tbis court has juris
It is shown by affidavit on the part of appellant that the delay in perfecting the record was caused by the inability of defendant to obtain a transcript of the evidence and proceedings in the case from the court reporter who took notes of the evidence; that affiant was delayed in furnishing such typewritten transcript on account of sickness in his family and want of assistance in deciphering and transcribing such shorthand notes; that the delay was not the fault of defendant. Under these circumstances the remedy should be allowed as provided for in Section 555, L. O. L., to the effect:
“When it appears by affidavit to the satisfaction of the court that the transcript is incomplete in any particular substantially affecting the merits of the judgment or decree appealed from, on motion of the respondent the court shall make a rule up on the clerk of the court below, requiring him to certify as to such alleged omission, and if true, to transmit to the appellate court a certified copy of the pleading, entry, order, or other paper omitted in the transcript; or, in such case, the respondent may move to dismiss the appeal, and the court shall allow such motion unless, on the cross motion of the appellant, it makes a rule upon the clerk concerning such omission, as provided in this section.”
Defendant asks until September 15, 1915, to submit an abstract of the record. It appears to be an overworked court officer, and not an attorney, that necessitates the time concerning the omission.
The motion to dismiss should be denied and the rule on the clerk of the lower court made as indicated above; and it is so ordered.
Motion Denied.
Dismissed on Stipulation.