Grand View State Bank v. Thams

• Decision Date: 03 February 1928
• Docket Number: 5171
• Citation: 45 Idaho 566,263 P. 1000
• Parties: GRAND VIEW STATE BANK, a Corporation, Respondent, v. J. L. THAMS, Appellant
• Court: Idaho Supreme Court

263 P. 1000

45 Idaho 566

GRAND VIEW STATE BANK, a Corporation, Respondent, v. J. L. THAMS, Appellant

No. 5171

Supreme Court of Idaho

February 3, 1928

APPEAL AND ERROR-COURT RULES-FILING OF TRANSCRIPT-DISMISSAL.

1. Supreme court rule 23 requires that completed reporter's transcript, copies of which had not been delivered or served on respondent's counsel, under C. S., secs. 6882, 6886 when praecipe was filed with district court's clerk under sec. 7166, must be filed with clerk of supreme court within 60 days after clerk of district court delivers copies thereof to counsel for appellant.

2. Under supreme court rule 26, appeal by party not filing reporter's transcript, delivered to appellant's counsel on or before October 8, 1927, with clerk of supreme court by December 7, 1927 as required by rule 23, will be dismissed, in absence of showing of valid excuse for delay or failure to obtain extension of time, under rule 25.

3. Affidavits that appellant's counsel remitted district court clerk's fees on Saturday, December 10th, and requested him to file reporter's transcript with supreme court clerk immediately, but that it was not filed until December 19th, and that he could not get into communication with client until on or about December 10th, because of latter's residence in remote, sparsely settled section held not to show valid excuse for failure to file transcript within 60 days after delivery of copies to affiant on or before October 8th, as required by supreme court rule 23, or to obtain extension of time under rule 25.

APPEAL from the District Court of the Third Judicial District, for Owyhee County. Hon. Clinton H. Hartson, Judge.

Motion to dismiss appeal. Granted.

Motion to dismiss the appeal granted.

P. E Cavaney, for Appellant.

William Healy, for Respondent.

Counsel file no briefs.

VARIAN, Commissioner. Ensign, C., Wm. E. Lee, C. J., and Budge, Taylor and T. Bailey Lee, JJ., concurs.

OPINION

VARIAN, Commissioner.--

From a decree foreclosing certain chattel mortgages, entered June 30, 1927, defendant appeals. Two appeals were commenced, but we refer only to the last which was perfected. September 21, 1927, appellant filed a praecipe with the clerk of the district court requesting a transcript pursuant to the provisions of C. S., sec. 7166. The reporter certified to his transcript on September 23d, and on October 8th counsel stipulated that "the above and foregoing reporter's transcript may be served in Boise, Ada County, Idaho, by the official Court Reporter in lieu of the same being served" by the clerk of the district court. On October 10th, the reporter's transcript was settled, pursuant to stipulation of counsel of that date, and filed with the clerk of the district court on October 11th. On November 9, 1927, said clerk certified to the completed transcript and filed the same with the clerk of the supreme court on December 19, 1927.

Respondent moved to dismiss the appeal because "the transcript of the record on said appeal was not served on the respondent or filed within sixty days from the delivery of the reporter's transcript and settlement thereof, or within sixty days from the date of filing with the clerk of the trial court a praecipe under C. S., sec. 7166."

Rule 23 of this court provides that where the reporter's transcript has been served upon respondent's counsel at the time of the filing of the praecipe with the clerk under C. S., sec. 7166, the transcript of record must be filed with the clerk within sixty days from filing such praecipe. But where (as here) the reporter's transcript is to be included in the record, and copies thereof have not been delivered or served under C. S., secs. 6882 and 6886, at the time the praecipe is filed with the clerk under C. S., sec. 7166, said transcript must be filed with the clerk of this court within sixty days from delivery of copies of the reporter's transcript. C. S., sec. 6882, refers to bills of exceptions, and has no application in the instant case. C. S., sec. 6886, provides that the original and copies (four) of the reporter's transcript shall be lodged by the reporter with the clerk of the district court, who shall mark the original and two copies as lodged on the date of said receipt, and deliver the remaining copies to the party procuring the same, who must serve one copy within five days, with a notice specifying any errors or omissions in the reporter's transcript, upon the adverse party or his attorney.

Obviously, rule 23 requires the completed transcript to be filed with the clerk of the supreme court within sixty days after the clerk of the district court delivers copies of the reporter's transcript to counsel for appellant applying for the same.

The date the reporter's transcript was delivered to appellant's counsel does not appear from the record here. In an affidavit filed by appellant, his counsel states that it was delivered to counsel for respondent "on or about October 8, 1927." It is fair to assume that the reporter's transcript was therefore "delivered" to counsel for appellant at, or prior to, that date....