Nielson v. Board of Commissioners of Bonneville County

• Decision Date: 02 March 1925
• Parties: JESSE H. NIELSON and C. E. CRIDDLE, Respondents, v. BOARD OF COUNTY COMMISSIONERS OF BONNEVILLE COUNTY, Appellants
• Court: Idaho Supreme Court

234 P. 686

40 Idaho 481

JESSE H. NIELSON and C. E. CRIDDLE, Respondents, v. BOARD OF COUNTY COMMISSIONERS OF BONNEVILLE COUNTY, Appellants

Supreme Court of Idaho

March 2, 1925

APPEAL AND ERROR-DISMISSAL-EXTENSION OF TIME TO FILE TRANSCRIPT.

Under sufficient showing, though extension of time to file transcript was not secured, appeal will not be dismissed.

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. Ralph W. Adair, Judge.

Motions to dismiss appeals. Denied.

Motion denied.

Otto E McCutcheon, for Appellant.

What the court really has decided in the cases generally cited in support of motions to dismiss on this ground is that the failure to apply for extension of time to file transcript under Rule 28, if reasonably justified by appellant's showing, will be excused. (Iowa State Savings Bank v Twomey, 31 Idaho 683, 175 P. 812; Woodmansee &amp Webster Co. v. Woodmansee, 31 Idaho 747, 176 P. 148; Blumauer-Frank Drug Co. v. First Nat. Bank, 35 Idaho 436, 206 P. 807; Intermountain Assn., etc., v. Rexburg Farmers' Society, etc., 38 Idaho 121, 220 P. 114.)

In Parkinson v. Winzler, 36 Idaho 449, 210 P. 738, the court said: "Appellant has shown no satisfactory reason why within the ninety-day period an order extending the time was not obtained from this court."

Appellant in this case is confident that the showing made in opposition to the motion to dismiss presents a satisfactory reason for the failure to file the transcript and the like failure to apply for an extension of time within which to file the transcript.

C. E Crowley and Holden & Mote, for Respondents, file no brief.

GIVENS, J. Wm. E. Lee and Taylor, JJ., concur, WILLIAM A. LEE, C. J., Concurring Specially. Budge, J., sat at the hearing but took no part in the decision.

OPINION

GIVENS, J.

Respondents move to dismiss three appeals, different only as to parties respondent, on the ground that the transcripts were not filed within the time provided by Rule 26 of this court and no extensions were secured. Appellants admit the above facts but claim there was excusable neglect in that the court reporter had been unavoidably delayed in getting out the transcripts but had advised counsel that he hoped to get them out before the time limit; that Otto E. McCutcheon, counsel for appellants, had a case before the circuit court of appeals in California and in order to make his appearance there was compelled to leave Oct. 27th, the time for filing the transcripts expiring Oct. 20th, and he told his stenographer to give O. E. McCutcheon, his assistant, the following note of instructions:

"Transcripts for County Cases to Sup. Court are due 10/20. If they come proper copies should be served on Holden & Mote (2 cases) and Crowley (1 case). Get extensions."

That by the last two words he meant to direct that extensions be secured from the court but that his assistant misunderstood and did not do so.

This court has never held that failure to obtain an extension of time is conclusive and absolute proof of negligence which cannot be rebutted. (California Gulch P. Min. Co. v. Patrick, 37 Idaho 661, 218 P. 378, and cases cited.)

It does not appear that the appellants were in any way responsible for the delay in the preparation of the reporter's transcripts, which have not yet been completed; therefore, appellants' failure to secure the extension of time has in no way prejudiced respondents nor has it delayed the completion and filing of the record. The securing of an extension would not have expedited the appeals in any way.

Motion denied.

Wm. E. Lee and Taylor, JJ., concur.

Budge, J., sat at the hearing but took no part in the decision.

CONCUR BY: WILLIAM A. LEE

WILLIAM A. LEE, C. J., Concurring

Specially.--I concur in the order denying the motions to dismiss the appeals in each of the foregoing cases, but not for the reasons stated in the opinion.

It has been uniformly held that a failure to file the transcript on appeal within the time fixed by Rule 26, or some extension of the time as provided for by Rule 28, negatives diligence. (Strand v. Crooked River Min. Co., 23 Idaho 577, 131 P. 5; First Nat. Dk. of American Falls v. Shaw, 24 Idaho 134, 132 P. 802; Coon v. Sommercamp, 26 Idaho 776, 146 P. 728; Stout v. Cunningham, 29 Idaho 809, 162 P. 928; Boise Payette Lumber Co. v. McCarthy, 31 Idaho 305, 170 P. 920; Iowa State Sav. Bank v. Twomey, 31 Idaho 683, 175 P. 812; Blumauer-Frank Drug Co. v. First Nat. Bk., 35 Idaho 436, 206 P. 807; H. B. 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; Gates v. Todd Commercial Co., 36 Idaho 784, 213 P. 1017; California Gulch P. Min. Co. v. Patrick, 37 Idaho 661, 218 P. 378; National Park Lbr. Co. v. Nelson, 37 Idaho 758, 218 P. 367; Utana M. Corp. v. Salmon River P. & L. Co., 37 Idaho 793, 218 P. 789.)

The majority opinion assigns as a reason for not dismissing these appeals that respondent has not suffered any injury by the delay and that it does not appear that appellants are responsible for the delay in the preparation of the transcripts required to complete the record on appeal. This gives to Rule 26 a construction directly contrary to that given it in the foregoing cases and many others that have been decided under this rule.

C. S sec. 7166, requires the clerk of the court below to transmit the record on appeal to the clerk of this court "within such time as is now or shall be designated by rule of the supreme court." Therefore, Rule 26, when construed in connection with this statute, has the force and effect of a legislative enactment. (California Gulch P. Min. Co. v. Patrick, supra.) To now hold that the rule does not apply unless respon...