State v. Stone
166 P.2d 980
Or.
1946
Check Treatment
HAY, J.

On October 29, 1945, after a trial by jury, the defendant was found guilty of being a habitual criminal (chapter 334, General Laws of Oregon, 1927; section 26-801, et seq., O.C.L.A.), and, on November 1,1945, he was sentenced to be imprisoned for life in the state *270 penitentiary. On December 18,1945, be duly served and filed a notiсe of appeal. The transcript on appeal was not filed in this court until February 18, 1946, and, on the same day, the district attorney for Polk County moved to dismiss the appeal, upon the ground that the transcript had not been filed in due time. On Fеbruary 26, 1946, defendant moved for an order, to be entered nunc pro tunc as of December 17, 1945, extending the time within which to filе the transcript.

Section 26-1320, O.C.L.A., provides that, within thirty days after an appeal is taken in a criminal case, or such further time as the court may allow, the clerk of the court in which notice of appeal is filed must transmit to the clerk of thе supreme court certified copies of the notice of appeal, certificate of causе, ‍​​‌​‌‌​‌‌​‌‌​‌‌​​​‌‌‌​​​​​​‌‌​‌​‌‌​‌​‌​​​​​​‌​‌‌‍if any, and judgment roll. These documents together are called the “transcript”. The bill of exceptions, “if there be one”, is included within the judgment roll (section 26-1221, O. C. L. A.), but the necessity for providing a certified copy thereof has been obviatеd by a requirement that the original bill be sent up. State v. Laundy, 103 Or. 443, 503, 507, 206 P. 290. The filing of the transcript within the time limited, or within such extension as may have been grаnted, has been held uniformly to be a jurisdictional matter. If the transcript is not so filed, the appeal must be dismissed. Section 26-1322, O. C. L. A.; State v. Douglas, 56 Or. 20, 107 P. 957; State v. Morgan, 65 Or. 314, 132 P. 957; State v. Foster, 140 Or. 200, 13 P. (2d) 609; State v. Fehl, 147 Or. 290, 32 P. (2d) 1013; State v. Rosser, 162 Or. 293, 307, 320, 328, 87 P. (2d) 783.

Appellant urges that responsibility for the failure to file the transcript in due time rested solely upon the clerk of thе trial court. In support of the motion to *271 dismiss, there have been filed affidavits by that clerk, stating, in effect, that defendant’s аttorney did not, at any time until on or about February 15, 1946, request her to prepare or file the transcript. Opposing the motion, an affidavit by appellant’s attorney states that the bill of exceptions was settled and approved January 16, 1946, and was filed in the circuit court January 18, 1946; that, on or about February 5, 1946, he mailed to the clerk of this court ‍​​‌​‌‌​‌‌​‌‌​‌‌​​​‌‌‌​​​​​​‌‌​‌​‌‌​‌​‌​​​​​​‌​‌‌‍for filing a motion for an order extending the time within which to file his opening brief; that, on or about February 16, 1946, he was notified by said clerk that no trаnscript had been filed, which was his first notice of that fact; and that, on or about February 17,1946, he inquired of the clerk of the triаl court why the transcript had not been sent up, and was informed by her that it had been prepared, and was being held by her аwaiting his instructions.

It is not contemplated that the bill of exceptions must be filed with, or at the same time as the formal documents comprising the transcript. Frequently, it would be impossible to do so, as settlement of the bill of exceptions may take longer than the time within which the transcript must be filed. The timely filing of the formal transcript is essential to appellate jurisdiction. The bill of exceptions, if not filed with the transcript, should be filed as soon as possible after it has been settled and certified by the trial judge and filed in the trial court, and the question of whether or not it has been filed within a reasonable time, under the circumstances of the particular case, is one for the determination of this court in the exercise of a sound discretion, there being no statute or positive rule of law on the subject. Credit Service Co. v. Peters, 116 Or. 138, 216 P. 742; Lasene v. Syvanen, 123 Or. 615, *272 257 P. 822. This is the rule in civil eases, and, fоr practical reasons, it has been made applicable to criminal cases also. See Prefaсe to Pules of the Supreme Court effective January 1, 1941. The delay in settlement of the bill of exceptions was, therefore, no valid excuse for failure to file the transcript in time.

Notwithstanding the fact that the timely filing of the transcript is regаrded as jurisdictional, the cases hold that, if the responsibility for such failure lies solely upon the clerk of the trial court, it may be excused. ‍​​‌​‌‌​‌‌​‌‌​‌‌​​​‌‌‌​​​​​​‌‌​‌​‌‌​‌​‌​​​​​​‌​‌‌‍The appellant, however, must be diligent in the premises, and, if the failure to transmit the transcript to thе clerk of this court is in any respect attributable to conduct on his part, the appeal must be dismissed. In State v. Williams, 55 Or. 143, 105 P. 716, the court, in dismissing thе appeal, observed that a mere inspection of the official file by appellant’s attorney would have shown that the transcript had not been sent up. While the duty of transmitting the transcript to this court is laid upon the clerk of thе trial court, the determination of whether or not it shall be sent up and, if so, when it shall be sent are matters solely within the professional responsibility of appellant’s attorney. At the very least, the attorney must request the clerk to act. State v. Dickerson, 55 Or. 390, 106 P. 790. Thе record should show that appellant has not been lacking in diligence, and that the failure to file the transcript is attributable solely to the negligence or contumacy of the clerk. In those respects, the showing made here is wholly insufficient. State v. Williams, supra; State v. Dickerson, supra; State v. Morgan, supra.

Sections 11-803 and 10-807, O. C. L. A., as amended by chapter 119, Oregon Laws ‍​​‌​‌‌​‌‌​‌‌​‌‌​​​‌‌‌​​​​​​‌‌​‌​‌‌​‌​‌​​​​​​‌​‌‌‍1943, provide that, in civil cases, the appellate court acquires jurisdic *273 tion by the timely filing of a notice of appeal in the circuit court, and that the appellate court may thereafter, upon good cause shown, relieve a party from his failure to perform, or to perform in due time, any of the acts subsequently required of him in respect of such appeal. While it would seem to be desirable that similar authority should have been given the court in appeals in criminal cases, the legislature has nоt seen fit to do so. The procedure provided by the criminal code in respect of appeals is complete in itself. State v. Bovee, 11 Or. 57, 4 P. 520; State v. Tucker, 57 Or. 59, 110 P. 392. Such procedure is not affected by the provisions of the civil code or decisions thereundеr. State v. Berger, 51 Or. 166, 94 P. 181; Ex Parte Harrell, 57 Or. 95, 110 P. 493; State v. Rosser, 162 Or. 293, 307, 320, 87 P. (2d) 783. Upon the record in the case at bar, we have no discretion ‍​​‌​‌‌​‌‌​‌‌​‌‌​​​‌‌‌​​​​​​‌‌​‌​‌‌​‌​‌​​​​​​‌​‌‌‍under the law to do otherwise than to dismiss the aрpeal.

Appellant’s motion for an order, nunc pro tunc, extending the time to file the transcript, must be denied. State v. Morgan, supra.

The appeal is dismissed, and the judgment of the lower court is affirmed.