National Park Lumber Co. v. Nelson
| Citation | 218 P. 367,37 Idaho 758 |
| Parties | NATIONAL PARK LUMBER COMPANY, a Corporation, Respondent, v. CHARLES A. NELSON, EDDIE E. NELSON and THEODORE A. NELSON, Copartners Doing Business Under the Firm Name and Style of NELSON BROTHERS, SHELLEY INDEPENDENT LUMBER & HARDWARE COMPANY, a Corporation, C. G. KELLER and F. E. ROBERTS, Appellants |
| Decision Date | 04 September 1923 |
| Court | United States State Supreme Court of Idaho |
APPEAL AND ERROR-TIME WITHIN WHICH RECORD ON APPEAL MUST BE FILED IN THIS COURT UNDER RULE 26.
Where the record on appeal is not filed in this court within the ninety days prescribed by Rule 26, or some extension of this time obtained in the manner prescribed by Rule 28, the appeal is subject to be dismissed upon motion.
APPEAL from the District Court of the Sixth Judicial District, for Bingham County. Hon. Ralph W. Adair, Judge.
Respondent moves to dismiss appeal. Motion granted.
Appeal dismissed. Costs to respondents.
D. W Standrod and Jas. B. Bacon, for Appellants.
Counsel for appellants, during the time that they were urging the reporter to complete his transcript of the testimony, were laboring under the thought that by the decisions of the supreme court of this state the mere fact that the supreme court had not been asked for an extension of time under Rule 28 would not be ground for striking the transcript or dismissing the appeal, in the absence of negligence on the part of counsel for appellants, or in event they had not contributed to the delay. (Fischer v. Davis, 24 Idaho 216, 133 P. 910; Moody v. Crane, 34 Idaho 103 199 P. 652.)
Blumauer-Frank Drug Co. v. First Nat. Bank of Weiser, 35 Idaho 436 206 P. 807, was not published in the Idaho Reports until some time after the appeal in the case at bar was taken, and after the time for applying to the supreme court for an extension of time under Rule 28 had expired.
Whitcomb Cowen & Clark, for Respondent.
In support of its motion to dismiss the appeal respondent relies upon Gates v. Todd Commercial Co., 36 Idaho 784, 213 P. 1017; Parkinson v. Winzler, 36 Idaho 449, 210 P. 738; Gemmell v. Collins, 36 Idaho 416, 210 P. 738; Blumauer-Frank Drug Co. v. First Nat Bank, 35 Idaho 436, 206 P. 807; Iowa S. S. Bank v. Twomey, 31 Idaho 683, 175 P. 812.
--Respondent National Park Lumber Company commenced this action to foreclose a materialman's lien. Nelson Brothers, the owners of the building, made no defense, and the sole appellant, Shelley Independent Lumber & Hardware Company, claims a superior lien upon the property by reason of a mortgage executed prior to the furnishing of the material, but which was not recorded until after respondent had commenced to furnish the material.
Appellant moved to have the hearing of this cause advanced, which was done, and thereupon respondent moved to dismiss the appeal on the ground that the transcript had not been filed in this court within the ninety days prescribed by Rule 26, or any extension thereof as prescribed by Rule 28. This motion to dismiss is accompanied by a certificate of the clerk of the court below to the effect that the judgment was entered on March 16, 1922; that the appeal was perfected on June 16, 1922; that the reporter's transcript was lodged with the clerk of the court below on May 25, 1923; and that the clerk transmitted the completed record to this court and the same was filed herein on June 3, 1923. It is admitted that no extension of time for filing the transcript on appeal was obtained from this court or any justice thereof.
The counter-showing of appellant, in resisting this motion to dismiss, admits these facts, but seeks to avoid the effect of them on the ground that when the order was obtained for the clerk's and reporter's transcript on appeal, both of these officials advised counsel that they believed the record could be completed within ninety days; that such officers are efficient and trustworthy; and that appellant relied upon these assurances until after the time had expired, when counsel assumed that, the time to procure an order of extension in this court having then lapsed, it would be unavailing to apply for such extension.
It is shown that appellant made diligent efforts to secure the reporter's transcript, but was not able to obtain the same until the latter part of May, 1923, owing, as claimed by the reporter, to the unusual amount of work ahead of the preparation of this transcript.
We have so frequently held that this situation does not excuse an appellant from having the time in which to file the completed record on appeal extended under Rule 28, and that a failure to do so negatives the presumption of diligence, that we would not deem it worth while to further discuss this question were it not for the fact that appellant's counsel urges that the rule announced in Fischer v. Davis, 24 Idaho 216, 133 P. 910, excuses appellant from such failure where it appears that the clerk or the reporter has failed to prepare his transcript within this time, and that this rule was reaffirmed in Moody v. Crane, 34 Idaho 103, 199 P. 652. It is also urged that the contrary rule announced in Blumauer-Frank Drug Co. v. First Nat. Bank, 35 Idaho 436, 206 P. 807, was not promulgated until after this appeal was taken, and that, therefore, it should not apply to this case.
Counsel are in error in stating that the Moody-Crane case supra, affirms the rule announced in Fischer v. Davis. As pointed out in California Gulch Placer Mining Co. v. Patrick, ante, p. 661, 218 P. 378, and as will be seen from an examination of the...
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