Ft. Misery Highway Dist. v. State Bank of Kamiah

• Decision Date: 21 August 1925
• Citation: 239 P. 277,41 Idaho 491
• Parties: FORT MISERY HIGHWAY DISTRICT (in Idaho County, Idaho), Respondent, v. STATE BANK OF KAMIAH, Insolvent, and E. W. PORTER (Substituted for J. G. FRALICK), as Commissioner of Finance of the State of Idaho, and E. SCOTT, as Agent in Charge of Said State Bank of Kamiah, Appellants
• Court: Idaho Supreme Court

239 P. 277

41 Idaho 491

FORT MISERY HIGHWAY DISTRICT (in Idaho County, Idaho), Respondent, v. STATE BANK OF KAMIAH, Insolvent, and E. W. PORTER (Substituted for J. G. FRALICK), as Commissioner of Finance of the State of Idaho, and E. SCOTT, as Agent in Charge of Said State Bank of Kamiah, Appellants

Supreme Court of Idaho

August 21, 1925

APPEAL AND ERROR-REPORTER'S TRANSCRIPT-SERVICE-TIME MANDATORY-LACHES IN SETTLEMENT-DISMISSAL OF APPEAL.

1. Service of the reporter's transcript of the testimony upon the adverse party within the time fixed by C. S., sec 6886, subd. 2, is mandatory. Failure to make service as therein required divests this court of the jurisdiction to consider on appeal the record or that portion thereof involved in the failure of service.

2. Where the record shows gross laches on the part of appellant in the matter of application for settlement of the reporter's transcript, upon proper motion therefor such transcript will be stricken from the files of this court.

3. Where the granting of a motion to strike reporter's transcript from the files leaves no question which this court can properly consider, the appeal will be dismissed.

APPEAL from the District Court of the Tenth Judicial District for Lewis County. Hon. Wallace N. Scales, Judge.

Action to impress trust upon funds of insolvent bank, Judgment for plaintiff. Appeal dismissed.

Appeal dismissed. Costs awarded to the respondent.

A. S. Hardy and James F. Ailshie, for Respondent.

"Rule 26 having been adopted in compliance with subd. 3 of C. S., sec. 7166, it has the same force as if it were a legislative enactment, and may only be suspended where appellant is without fault, and would be, by its enforcement, unjustly or fraudulently deprived of his right to appeal." (California Gulch Placer Min. Co. v. Patrick, 37 Idaho 661, 218 P. 378; National Park Lumber Co. v. Nelson, 37 Idaho 758, 218 P. 367.)

"If transcript on appeal is not filed in this court within the time prescribed by rule 26, or such extension thereof as may be granted under rule 28, the appeal will be dismissed on motion, unless appellant makes a showing that excuses such failure." (Utana Min. Corp. v. Salmon River P. & L. Co., 37 Idaho 793, 218 P. 789; Stout v. Cunningham, 29 Idaho 809, 162 P. 928; Gates v. Todd Com. Co., 36 Idaho 784, 213 P. 1017; Lake & Co. v. Bales, 36 Idaho 142, 210 P. 396; Gemmell v. Collins, 36 Idaho 416, 210 P. 738; Parkinson v. Winzler, 36 Idaho 449, 210 P. 738; Blumauer-Frank Drug Co. v. First Nat. Bank, 35 Idaho 436, 206 P. 807; T. W. & L. O. Naylor Co. v. Bowman, 36 Idaho 211, 209 P. 1071; Dye v. Moscow State Bank, 36 Idaho 464, 212 P. 870; Iowa State Sav. Bank v. Twomey, 31 Idaho 683, 175 P. 812.)

"The showing now made would have been proper and perhaps sufficient in support of such application. It is not sufficient as an excuse for failure to apply for an extension and therefore due diligence does not appear." (Hansen v. Boise-Payette Lumber Co., 31 Idaho 600, 174 P. 703; Boise-Payette Lumber Co. v. McCarthy, 31 Idaho 305, 170 P. 920; Worthman v. Shane, 31 Idaho 433, 173 P. 750.)

John R. Becker, for Appellants.

Jurisdiction to entertain an appeal is not dependent upon compliance with rules 26 and 28. (Stout v. Cunningham, 29 Idaho 809, 162 P. 928; Lucas v. City of Nampa, 37 Idaho 763, 219 P. 596; Booth v. Drainage Dist. No. 3, 40 Idaho 549, 235 P. 895; 2 Hayne, New Trial and Appeal, Rev. ed., sec. 269.)

The enforcement of rules 26 and 28 is discretionary with the court, and the same may and should be waived or suspended to subserve the ends of justice. (United States v. Breitling, 20 How. (U.S.) 252, 15 L.Ed. 900; Pickett v. Wallace, 54 Cal. 147; Sullivan v. Wallace, 73 Cal. 307, 14 P. 789; 15 C. J. 912.)

Where a state officer has proceeded in good faith to liquidate numerous insolvent banks in accordance with an act of the legislature prescribing his powers and duties, a decision of a district court declaring such legislative act unconstitutional should be reviewed by the appellate court, wherein a sufficient record for that purpose is on file, notwithstanding informalities in complying with court rules in the prosecution of the appeal. (Cohens v. Virginia, 6 Wheat. 264, 5 L.Ed. 257; Marbury v. Madison, 1 Cranch, 137, 2 L.Ed. 60; 6 R. C. L., pp. 70, 78.)

Where a public officer, by virtue of a judgment rendered in a district court declaring the claim in controversy to be a prior lien on any and all funds in his hands, superior to expenses of administration, is thereby deterred from incurring further expense, for the employment of counsel or otherwise, such embarrassment should be taken into consideration in determining the question of diligence, on the part of volunteer counsel for appellant, in prosecuting an appeal from such judgment. (Hubback v. Ross, 79 Cal. 564, 21 P. 965.)

Where a district court reporter, charged by law with the duty of preparing transcripts on appeal, fails to complete and lodge a transcript with the clerk of the district court until after the expiration of the time prescribed by rule of the appellate court for filing the completed transcript therein, the rule should not be enforced and the penalty of dismissal imposed upon an appellant who is personally without fault. (C. S., sec. 6886; Fischer v. Davis, 24 Idaho 216, 133 P. 910; Moody v. Crane, 34 Idaho 103, 199 P. 652.)

"This court has never held that failure to obtain an extension of time is conclusive and absolute proof of negligence which cannot be rebutted." (Neilson v. Board of Commrs., 40 Idaho 481, 234 P. 686; California Gulch P. M. Co. v. Patrick, 37 Idaho 661, 218 P. 378; Booth v. Drainage Dist. No. 3, 40 Idaho 549, 235 P. 895.)

BUDGE, J. William A. Lee, C. J., concur, TAYLOR, J., Concurring Specially. Wm. E. Lee and Givens, JJ., dissent.

OPINION

BUDGE, J.

In this case judgment was entered October 16, 1923, in favor of the respondent, from which judgment an appeal was perfected on January 15, 1924. Respondent, by proper notice and motion filed in this court, has moved to strike the reporter's transcript from the files of this court for the reason and on the ground that same was never served upon respondent or its counsel in the manner or within the time required by law, or at all; that no application was ever made to have the same settled within the time required by law or the rules of this court; that no jurisdiction exists to settle the transcript; that appellants have been guilty of prejudicial delay in respect to said matters; and for the further reasons that the same has never been actually settled either by the judge who tried the cause or by any judge or court within the time required by law or the rules of this court, or at all, that the pretended settlement thereof indorsed upon said transcript is not an actual settlement of the same and is founded upon a misconception of an order of this court, and that the same has never been filed in the district court in which the said cause was tried and the same is not properly a part of the record in said cause.

The foregoing motion is supported by the affidavits of the attorneys for the respondent and the clerk of the district court of the tenth judicial district and upon certain correspondence between said clerk and the attorneys for appellants, as well as certain correspondence between the attorneys for the respondent and the attorneys for the appellants, and upon the records and files in the action. It is resisted upon the affidavit of one of the attorneys for the appellants and certain correspondence had between said attorney and the attorneys for the respondent and upon the files in the action.

It appears from the record that the reporter's transcript of the testimony was lodged with the clerk of the district court of the tenth judicial district on April 21, 1924, and that on April 25, 1924, the clerk sent two copies of such transcript bound together with an incomplete clerk's transcript, by express to the attorneys for the appellants, who received them the following day. On May 5, 1924, the attorneys for the appellants returned the transcripts to the clerk accompanied by a latter in which they suggested, to the end that the clerk's transcript be complete, that a certain alleged order for hearing in chambers be inserted in the clerk's transcript and further directed the clerk to insert the title and index pages and add his own certificate. This was done, and the reporter's transcript together with the clerk's transcript completed as requested was returned to the attorneys for appellants On May 10, 1924. On May 13, 1924, appellants attorney sent by express to one of the respondent's attorneys what they designated as a completed transcript, which had not been settled or submitted to the trial court for settlement, or theretofore been served on the attorneys for the respondent. It will therefore be observed that the reporter's transcript was received by counsel for appellants on April 26, 1924, and that it was not served upon counsel for the respondent until May 13, 1924, when it was...