Stewart v. Davis

44 Mo. App. 562 | Mo. Ct. App. | 1891

Rombauer, P. J.

The respondent produces the certificate of the clerk of the circuit court, showing that an appeal was granted to the plaintiffs to this court on the eighteenth day of August, 1890. No transcript has ever been filed by the appellants, and the respondent moves for an affirmance of the judgment for failure to prosecute the appeal.

The only cause shown by the affidavit of the appellants, why they failed to file the transcript either prior to the October term, to which the appeal was returnable, or to the succeeding March term, is thát the stenographer of the court was busy with other matters and did not transcribe the evidence in time. This is no good cause. The supreme court and this court have repeatedly decided that even the negligence of the clerk is no excuse for failure to file a transcript in time. Beyond all this it does not appear that the errors complained of do not appear on the record proper, or that the evidence is voluminous, or that the appellant could not have filed an abstract of the record under the provisions of section 2253 of the code.

The respondent’s motion is sustained. All the judges concurring, the judgment is affirmed.