Scott v. Madarica

• Court: United States State Supreme Court of Idaho
• Writing for the Court: RICE, J.
• Citation: 188 P. 37,32 Idaho 756
• Parties: GUS SCOTT, Respondent, v. SANDIAGO MADARICA, Appellant
• Decision Date: 18 March 1920

188 P. 37

32 Idaho 756

GUS SCOTT, Respondent, v. SANDIAGO MADARICA, Appellant

Supreme Court of Idaho

March 18, 1920

APPEAL AND ERROR-TIME WITHIN WHICH TRANSCRIPT MUST BE FILED-MOTION TO DISMISS.

1. Where the record discloses that it is intended that the transcript on appeal shall contain a reporter's transcript in lieu of a bill of exceptions, the time within which the transcript must be filed in this court does not begin to run until the reporter's transcript has been settled by the trial court.

2. It is not a ground for dismissal that a transcript on appeal has not been served and filed in this court within six months after perfecting of the appeal.

3. The time for filing transcript on appeal in this court will begin to run from the date the trial court refuses to settle the reporter's transcript.

4. In case the appellant permits the time within which the reporter must prepare and lodge his transcript with the clerk of the court below, as ordered by the trial judge, to expire without procuring an extension thereof, the time for filing the transcript in this court would begin to run from the date of the expiration of the time prescribed by the order of the trial court. But if within sixty days after the expiration of the time limited for lodging the reporter's transcript the appellant files a motion in the lower court for an order extending the time and requiring the reporter to prepare and lodge the transcript, which motion is denied, such denial is tantamount to a refusal to settle the reporter's transcript, and the appeal will not be dismissed until sixty days after the denial of the motion.

APPEAL from the District Court of the Third Judicial District, for Owyhee County. Hon. Charles P. McCarthy, Judge.

Motion to dismiss appeal. Denied.

Motion denied.

P. E Cavaney, for Appellant.

Elliott & Healy, for Respondent.

Counsel file no briefs.

RICE J. Morgan, C. J., concurs. Budge, J., dissents.

OPINION

RICE J.

In this case the appeal was perfected on June 19, 1919. On June 18, 1919, the trial court made an order requiring the court reporter to prepare transcript of the testimony and lodge the same within forty days from that date. The transcript was not prepared and lodged within the time prescribed by the order, and on August 30, 1919, appellant filed a motion for an order of the court directing the court reporter to proceed and prepare the reporter's transcript. On December 23, 1919, the court entered an order denying appellant's motion. On February 4, 1920, respondent moved this court to dismiss the appeal.

Three grounds are assigned for the dismissal of the appeal.

The first is that no transcript of the record has been served upon respondent or filed in this court within sixty days after the appeal was perfected. This assignment, standing alone, is not ground for dismissal. The moving papers show that it was intended that the record should contain a reporter's transcript of the testimony in lieu of bill of exceptions. Under this condition, the time for serving and filing the transcript in this court does not begin to run until the reporter's transcript has been settled. (Welch v. Spokane etc. R. Co., ante, p. 668, 186 P. 915.)

The second ground for dismissal is that no transcript on appeal was served or filed in this court...