Stout v. Cunningham

• Decision Date: 19 January 1917
• Parties: W. OAKLEY STOUT et al., Appellants, v. J. W. CUNNINGHAM et al., Respondents
• Court: Idaho Supreme Court

162 P. 928

29 Idaho 809

W. OAKLEY STOUT et al., Appellants, v. J. W. CUNNINGHAM et al., Respondents

Supreme Court of Idaho

January 19, 1917

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

Motion to dismiss the appeal for failure to file the transcript of record on appeal within the time prescribed by rules 26 and 28 of the rules of this court.

Case dismissed. Costs awarded to the respondent.

Richards & Haga and Marvin C. Hix, for Respondents.

The appellate court may have jurisdiction over an appeal, yet if the record is not presented to the court, as required by law it has no jurisdiction to entertain and determine the appeal. (Glavin v. Lane, 29 Mont. 228, 74 P. 406.)

An appeal is perfected as soon as the notice of appeal is served and filed, and an undertaking on appeal filed. (Fischer v. Davis, 24 Idaho 216, 222, 133 P. 910.)

"If the transcript of record is not filed within the time prescribed by Rule 26, the appeal . . . . may be dismissed on motion. . . . " (Coon v. Sommercamp, 26 Idaho 776, 146 P. 728; State v. Jewett, 27 Idaho 147, 147 P. 288; First Nat. Bank of American Falls v. Shaw, 24 Idaho 134, 132 P. 802.)

The laches of the clerk has been held not to excuse the laches of the appellant. (Fain v. Southern Ry. Co., 130 N.C 29, 40 S.E. 818; Redway v. Chapman, 48 Mo. 218; Coon v. Sommercamp, supra; Davis v. American Freehold Land Mortg. Co., 12 Tex. Civ. App. 37, 33 S.W. 271; Martin v Phelps, 53 Miss. 134.)

While the statute does not expressly limit the time for serving and filing the transcript, yet it has expressly authorized the court to fix such time, and once the time has been fixed by rule of court, it cannot be changed to fit conditions of a particular case. (State ex rel. Connors v. Foster, 36 Mont. 278, 92 P. 761; Hanson v. McCue, 43 Cal 178; Murphy v. Gould, 39 App. D. C. 363; Talty v. District of Columbia, 20 App. D. C. 489; District of Columbia v. Roth, 18 App. D. C. 547; Rio Grande Irrigation & Colonization Co. v. Gildersleeve, 174 U.S. 603, 604, 19 S.Ct. 761, 43 L.Ed. 1103, 1105; Magunson v. Billings, 152 Ind. 177, 52 N.E. 803; Mahoney v. Marshall, 3 Idaho 343, 29 P. 110; Cole v. Ryan, 24 Mont. 122, 60 P. 991.)

Once the time for doing an act has expired, the court no longer has any authority or jurisdiction to entertain an application for an extension thereof. (Wadsworth (Woodsworth) v. Beardsley, 64 Kan. 885, 67 P. 457; 3 Cyc. 120; Freese v. Freese, 134 Cal. 48, 49, 66 P. 43; Clark v. Crane, 57 Cal. 629.)

An order extending the time for doing an act must be made before such time has expired. (Southern Pacific Co. v. Pender, 14 Ariz. 573, 134 P. 289; Antis v. Parson, 40 Okla. 449, 138 P. 1020; West v. Irwin, 54 F. 419, 4 C. C. A. 401; Butter v. Lamson, 29 Utah 439, 82 P. 473; Byrd v. Harrison, 45 Okla. 142, 145 P. 318.)

Wood, Driscoll & Wood, for Appellants.

Jurisdiction of the appellate court does not depend upon the filing of the transcript. It attaches immediately upon the filing of the notice of appeal, and cannot be divested, either by failure to file the transcript or by its subsequent loss. (2 Hayne, New Trial and Appeal, sec. 270, p. 1498; Westheimer v. Thompson, 3 Idaho 418, 31 P. 797; Taylor v. McCormick, 8 Idaho 37, 66 P. 805; Fischer v. Davis, 24 Idaho 216, 133 P. 910; Estate of Davis, 151 Cal. 318, 121 Am. St. 105, 86 P. 183, 90 P. 711; Robinson v. Robinson, 158 Cal. 117, 110 P. 112; Chapman v. Bank of California, 88 Cal. 419, 26 P. 608; Castro v. Breidenbach, 143 Cal. 335, 76 P. 1114; Curtin v. Ingle, 9 Cal.App. 241, 98 P. 868; McAvoy v. Jennings (Harkins), 39 Wash. 109, 81 P. 77.)

"Rules of court are but a means to accomplish the ends of justice, and it is always in the power of the court to suspend its own rules or to except a particular case from their operation, whenever the purposes of justice require it." (Pickett v. Wallace, 54 Cal. 147.)

"Unavoidable delays in the preparation and printing of transcripts are always accepted as ample excuses for failure to file the same within the prescribed time." (2 Hayne, New Trial and Appeal, 1526.)

No dismissal will be ordered where the transcript is on file at the time the motion to dismiss is made. (4 Corpus Juris, 472; Jaques v. Board of Suprs., 22 Cal.App. 627, 135 P. 686; Gustin v. Jose, 10 Wash. 217, 38 P. 1008; State v. Wilson, 7 Wash. 502, 35 P. 377; McNamara v. Crystal Min. Co., 23 Wash. 26, 62 P. 81; Prescott v. Puget Sound Bridge & Dredging Co., 30 Wash. 158, 70 P. 252; Raymond v. Bales, 26 Wash. 493, 67 P. 269; Armijo v. Abeytia, 5 N.M. 533, 25 P. 777.)

Such, also, is the uniform rule in the Federal court. (Kawailani, The, 128 F. 879, 63 C. C. A. 347; Incorporated Town of Gilman v. Fernald, 141 F. 940, 72 C. C. A. 666.)

Where the showing on motion to dismiss is such as would have procured an order of extension had it been moved, the motion to dismiss will be denied. (Chapman v. Bank of California, supra; Curtin v. Ingle, supra; Maxwell v. Griffith, 20 Wash. 106, 54 P. 938; Dean v. Oregon R. & N. Co., 38 Wash. 565, 80 P. 842; Brunnings v. Townsend, 6 Cal. Unrep. 647, 64 P. 106.)

BUDGE, C. J. Morgan and Rice, JJ., concur.

OPINION

BUDGE, C. J.

The respondent moves the dismissal of the appeal in this case upon the ground that the transcript of the record on appeal was not served upon appellant or his attorney and filed in this court within sixty days after the appeal was perfected, as required by rule 26 of the rules of this court, and subd. 3, chap. 117, Sess. Laws 1911, p. 376; and that the time for filing said transcript of record on appeal was not extended as provided for by rule 28 of the rules of this court.

The facts of this case, so far as the motion to dismiss the appeal is concerned, are as follows: The complaint was filed in the district court on July 26, 1911, to which a demurrer was filed by respondent, Cunningham, and sustained. An amended complaint was thereafter filed a demurrer to which was likewise sustained. October 16, 1915, appellant herein, plaintiff below, having failed to further amend his complaint the case was dismissed.

This is an appeal from the judgment of dismissal and was perfected on January 13, 1916. On April 1, 1916, the time for filing the transcript in this court having expired under rule 26, an order was signed by one of the justices, extending the time within which to file the transcript to May 1, 1916. Before the expiration of this latter period of extension the time for filing was further extended to June 1, 1916. The transcript was served upon respondent and filed with the clerk of this court on the 5th day of May, 1916, and on the 10th day of May, 1916, respondent filed his motion to dismiss this appeal.

We have therefore two propositions involved in the motion to dismiss this appeal; first, the question of jurisdiction, which arises by reason of the failure of the appellant to serve upon the respondent or his attorney and file in this court the transcript of the record of the trial court within sixty days after the appeal was perfected; second, conceding that this court acquires jurisdiction upon the filing of the notice of appeal and the undertaking, irrespective of the filing of the transcript within the time fixed by the rules of this court, was the appellant negligent in that he failed to secure an order from this court or a justice thereof, extending the time within which to file and serve the transcript in this court, before the time fixed by the rules had expired, and did appellant fail to exercise reasonable diligence in completing the transcript and making service thereof upon the respondent or his attorney within the time prescribed by said rules?

We will first direct our attention to the jurisdictional question. Counsel for respondent insists that the filing of the transcript in this court and the service upon respondent or his attorney, within the time prescribed by rule 26, is jurisdictional, and cites secs. 3815 and 3817, Rev. Codes, and also Sess. Laws 1911, subd. 3, p. 376, which provides among other things:

"The clerk shall complete said transcript and transmit the original and two (2) copies to the clerk of the Supreme Court . . . . within such time as is now or shall be designated by rule of the Supreme Court, and shall, within the said time deliver the remaining two (2) copies to the appellant or his attorney, who shall forthwith serve one (1) copy upon the adverse party or his attorney, . . . . and shall file appropriate affidavit or admission of service with the clerk of the Supreme Court. . . . "

Rule 26, governing the filing and service of transcripts, provides:

"In all cases where an appeal is perfected . . . . transcripts of the record . . . . must be served upon the adverse party and filed in this Court within sixty days after the appeal is perfected . . . . written evidence of the service of the transcript upon the adverse party shall be filed therewith."

It is conceded that the transcript was not filed or served within sixty days after the appeal was perfected. Therefore, if the jurisdiction of this court depends upon the filing of the transcript within the time fixed by the rule heretofore referred to, the motion of the respondent must be sustained. However, our attention is directed to rule 28, which provides:

"The time limit in which the transcript must be served and filed, as set forth in rule 26, may be extended by an order of the Court or a Justice thereof, upon good cause shown by affidavit, or by stipulation of the parties filed with the Clerk."

It appears from the record that after the expiration of the time, under rule 26, for the filing of the transcript in this court, counsel for appellant obtained an order, in accordance with rule 28...