Obermeyer v. Kendall

• Decision Date: 11 October 1922
• Parties: HENRY OBERMEYER, Appellant, v. T. R. KENDALL, Respondent
• Court: Idaho Supreme Court

209 P. 888

36 Idaho 144

HENRY OBERMEYER, Appellant, v. T. R. KENDALL, Respondent

Supreme Court of Idaho

October 11, 1922

DISMISSAL OF APPEAL - APPLICATION OF COURT RULES - ORDERS OF TRIAL JUDGE FOR PREPARATION OF TRANSCRIPT-FAILURE OF COURT REPORTER TO FILE TRANSCRIPT IN TIME.

1. The appellate court will not go behind an order made by the trial judge granting further time to the court reporter within which to prepare and lodge his transcript with the clerk of the district court, as regards the showing upon which such order is based.

2. The failure of the court reporter to file his transcript with the clerk of the district court within the time allowed is not a jurisdictional matter and is not ground for the dismissal of the appeal.

3. Under the provisions of Rule 26 as in force upon February 25 1920, the failure to file a transcript upon appeal within the six months from the perfection of the appeal is not of itself ground for the dismissal of the appeal.

APPEAL from the District Court of the Seventh Judicial District, for Gem County. Hon. Ed L. Bryan, Judge.

Action on contract. Judgment for defendant. Motion to dismiss appeal, denied.

Motion to dismiss the appeal denied.

Geo. C Huebener, for Appellant.

A reporter's transcript prepared under C. S., sec. 6886 will not be stricken from the record on appeal because it was not prepared, lodged, served and settled within the time allowed, where appellant has obtained and served the proper order and paid the fees, and the delay is not due to any negligence on his part. (Moody v. Crane, 34 Idaho 103, 199 P. 652; Fischer v. Davis, 24 Idaho 216, 133 P. 910.)

A transcript on appeal filed in this court within sixty days after the settlement of the reporter's transcript of the testimony and within six months of the perfecting of the appeal is filed within the time prescribed by Rule 26 of this court. (Stine Lumber Co. v. Hemenway, 32 Idaho 153 179 P. 505.)

M. I. Church, for Respondent.

Where appellants do not show that the failure of the reporter to lodge his transcript with the clerk of the court below within the time granted by the trial judge is without fault on their part, the trial judge should refuse to settle the same; and, even though settled by the trial judge, the transcript will upon motion be stricken from the record on appeal. (Bergh v. Pennington, 33 Idaho 198, 191 P. 204; Moody v. Crane, 34 Idaho 103, 199 P. 652.)

"Where a transcript on appeal has not been filed within the time limited by the rules, or an extension thereof, such appeal will, upon motion, be dismissed in the absence of a sufficient showing of diligence by the appellant." (Iowa State Sav. Bank v. Twomey, 31 Idaho 683, 175 P. 812; Wolter v. Church, 30 Idaho 427, 165 P. 521; Worthman v. Shane, 31 Idaho 433, 173 P. 750; Stout v. Cunningham, 29 Idaho 809, 162 P. 928; Bohannon Dredging Co. v. England, 30 Idaho 721, 168 P. 12; Hansen v. Boise-Payette Lumber Co., 31 Idaho 600, 174 P. 703; Blumauer-Frank Drug Co. v. First Nat. Bank of Weiser, 35 Idaho 436, 206 P. 807.)

BUDGE, J. McCarthy and Dunn, JJ., concur.

OPINION

BUDGE, J.

Respondent has moved to dismiss the appeal in this case upon the following grounds, first, that the record shows that on December 24, 1921, the district judge made an order extending the time originally given the court reporter for the preparation, completion and lodgment of the transcript in this action to January 31, 1922, but the record fails to show good cause or any cause for such extension of time by affidavit or upon stipulation as provided in Rule 28 of this court; second, the reporter's transcript of the evidence was not prepared, completed and lodged with the clerk of the district court within the time or extension of time given by the district judge; and, third, for the reason that the transcript of the record was not filed in the supreme court within the time prescribed by Rule 26 of this court.

Since this appeal was taken under the rules of this court adopted December 27, 1919, and in effect February 25, 1920, the motion to dismiss will be governed by the rules then in force.

Rule 28, relied upon by appellant, has no application to orders granted by the trial court extending the time to the court reporter to prepare and lodge with the...