Blumauer-Frank Drug Co. v. First National Bank of Weiser

• Decision Date: 28 April 1922
• Citation: 35 Idaho 436,206 P. 807
• Parties: BLUMAUER--FRANK DRUG COMPANY, a Corporation, Appellant, v. THE FIRST NATIONAL BANK OF WEISER, a Corporation, Respondent
• Court: Idaho Supreme Court

206 P. 807

35 Idaho 436

BLUMAUER--FRANK DRUG COMPANY, a Corporation, Appellant, v. THE FIRST NATIONAL BANK OF WEISER, a Corporation, Respondent

Supreme Court of Idaho

April 28, 1922

APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. Ed. L. Bryan, Judge.

An action for value of goods sold and delivered. Appeal from judgment of dismissal. Appeal dismissed.

Motion to dismiss the appeal granted, with costs the respondent.

Ed. R Coulter, for Appellant.

Harris Stinson & Harris, for Respondent.

Counsel file no briefs on points decided.

MCCARTHY J. Rice, C. J., and Dunn and Lee, JJ., concur.

OPINION

MCCARTHY, J.

Respondent has moved to dismiss the appeal on the ground that the transcript was not filed in this court within the time limited by rule 26 (176 P. xix). The appeal was perfected on Nov. 20, 1920. It is from a judgment of dismissal, the court having sustained a demurrer and motion to strike, and appellant having refused to plead further. On Feb. 19, 1921, the time to file the transcript having expired, the clerk of the district court notified appellant's attorney that he had been unable to complete it. Appellant procured from respondent's attorney a stipulation that the clerk should have thirty days additional time to complete, serve and file the transcript, and that the judge of the district court might make an order to that effect. Such an order was made. Both the stipulation and order were dated back to Feb. 12, 1921.

The stipulation as such could not have the effect of extending the time. The order could not have that effect because the district judge had no authority to make such an order. (C. S., sec. 7166, subd. 3; Rule 26; Rule 28.)

This court has held: "When the transcript on appeal is not filed within the time prescribed by the rules of this court and no extension of time has been granted, the appeal is subject to dismissal." (Peterson v. Phelps, 31 Idaho 692, 175 P. 709.)

Also, "Where a transcript on appeal has not been filed within the time limited by the rules, or an extension thereof, such appeal will, upon motion, be dismissed in the absence of a sufficient showing of diligence by the appellant.

"A failure to apply for an extension of time within which to file a transcript negatives the question of diligence." (Iowa State Sav. Bank v. Twomey, 31 Idaho 683, 175 P. 812. See, also, Woodmansee & Webster Co. v. Woodmansee, 31 Idaho 747, 176 P. 148.)

In Moody v. Crane, 34 Idaho 103, 199 P. 652, this court affirmed the rule of Fischer v. Davis, 24 Idaho 216, 133 P. 910, in holding that: "Under C. S., sec. 6886, it is the duty of the court reporter, where he has been unable to prepare a transcript within the time allowed by the trial court's order, to have such time extended before its expiration, but his failure to do so will not be sufficient reason for striking such transcript from the record on appeal, where appellant has not contributed to such delay."

We are now asked by appellant to affirm the rule of Fischer v Davis, in holding that, under C. S., sec. 7166, it is...