Gemmell v. Collins

• Decision Date: 19 December 1922
• Citation: 36 Idaho 416,210 P. 738
• Parties: DAVID GEMMELL, Appellant, v. J. T. COLLINS, Respondent
• Court: Idaho Supreme Court

210 P. 738

36 Idaho 416

DAVID GEMMELL, Appellant, v. J. T. COLLINS, Respondent

Supreme Court of Idaho

December 19, 1922

DISMISSAL OF APPEAL-FAILURE TO FILE TRANSCRIPT.

APPEAL from the District Court of the Fifth Judicial District.

Appeal dismissed, with costs to respondent.

C. M. Booth, for Appellant.

Peterson & Coffin, for Respondent.

Counsel file no briefs.

LEE, J. Rice, C. J., and Budge, McCarthy and Dunn, JJ., concur.

OPINION

LEE, J.

This is a motion to dismiss plaintiff's appeal for the reason that the transcript of record on appeal in said cause has not been filed within the time prescribed by Rule 26 or any extension of time as prescribed by Rule 28 (176 P. xix) of this court.

The motion is based upon a certificate of the clerk of the district court of the fifth district, for Bannock county, wherein such clerk certifies that a money judgment was obtained against the plaintiff and appellant in the sum of $ 525 on the 9th day of December, 1921; that a notice and an undertaking on appeal were filed in said cause on March 4, 1922; and that the reporter's transcript was settled on the 9th day of September, 1922.

Acknowledgment of service of this certificate of the clerk was made by C. M. Booth, Esq., counsel for appellant, on November 10, 1922, and no counter showing has been made.

No transcript on appeal has been filed in this court within ninety days, as required by said Rule 26; nor has there been any extension of time by the court or any justice thereof, and the time limit having expired, under Rule 27 (176 P. xix), the appeal will be dismissed, with costs to respondent.

Rice, C. J., and Budge, McCarthy and Dunn, JJ., concur.