Strand v. Crooked River Mining & Milling Co.

• Decision Date: 29 March 1913
• Citation: 23 Idaho 577,131 P. 5
• Parties: N. O. STRAND, Respondent, v. CROOKED RIVER MINING & MILLING COMPANY et al., Respondents, E. H. HANSON, Intervenor, Respondent, and PETER MARREN, Appellant
• Court: Idaho Supreme Court

131 P. 5

23 Idaho 577

N. O. STRAND, Respondent, v. CROOKED RIVER MINING & MILLING COMPANY et al., Respondents, E. H. HANSON, Intervenor, Respondent, and PETER MARREN, Appellant

Supreme Court of Idaho

March 29, 1913

APPEAL-TRANSCRIPT-TIME OF FILING-SETTLEMENT OF REPORTER'S TRANSCRIPT-UNDERTAKING-TIME OF FILING-SERVICE OF TRANSCRIPT-FILING PRAECIPE FOR PAPERS-DELAY.

1. Where an order has been made by a justice of this court upon a proper showing, extending the time within which the transcript may be filed beyond the period fixed by the statute and the rules of this court, and such transcript is filed within the time prescribed by the order, the appeal will not be dismissed.

2. Under the provisions of sec. 4434, Rev. Codes, as amended by chap. 119, Laws of 1911, p. 379, in order to review the matters contained in the stenographer's transcript, such transcript must be settled by the judge, and when so settled has the force and effect of a bill of exceptions duly settled and allowed, and will be deemed adequate to present for review any ruling appearing therein to have been excepted to and when not so settled the same will be stricken from the transcript upon proper motion.

3. The certificate of the clerk of the district court that an undertaking on appeal has been filed within the time allowed by law is sufficient when no showing is made to the contrary that the same was not filed within the time prescribed by law.

4. Where it appears from the record on appeal that the transcript was not served upon the adverse party, and a motion is made in this court to dismiss the appeal upon the ground that such transcript was not served said motion will be sustained, as such statute is mandatory and requires the transcript to be served.

5. The fact that an appellant does not file a praecipe designating the papers desired to be included in the transcript with the clerk within five days, as required by sec. 4820a, Rev Codes, under an act approved February 25, 1911, Laws of 1911 p. 375, is not a ground for dismissing an appeal, where the record shows that the attorneys certify that the transcript does contain all the papers desired to be included in the transcript, and the clerk certifies that the transcript contains all the files and records of the case.

6. The failure to file briefs within the time specified by the rules of this court is not a ground for dismissing the appeal, except that where other grounds exist, such fact may be taken into consideration in determining whether the appeal has been prosecuted with due diligence and not for the purpose of delay.

APPEAL from the District Court of the Second Judicial District for Idaho County. Hon. Edgar C. Steele, Judge.

Appeal dismissed.

Appeal dismissed. Costs awarded to respondents.

John P. Gray and Frank A. McCarthy, for Appellant.

P. E. Stookey and A. S. Hardy, for Respondents.

Counsel file no briefs.

STEWART, J. Ailshie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

The respondent, E. H. Hanson, filed in this court, on March 17, 1913, a motion to dismiss the appeal. On the same day a motion was filed by the other respondents to dismiss the appeal. The motion made by the respondent Hanson assigns several grounds and includes the grounds set forth in the motion of the other respondents, and the two motions will be considered together.

The first ground for dismissal is, that the transcript was not filed in the supreme court or with the clerk thereof within the time provided by law and the rules of said court. This objection is overruled, for the reason that it appears that an order was made granting twenty days' additional time to that prescribed by law for the filing of such transcript, and the transcript was filed within the time fixed by the order.

The second ground for dismissal is that the stenographer's transcript of the proceedings and the reporter's transcript of the trial contained therein were never settled or approved by the judge who tried the cause. Upon the argument of this motion an oral motion was made that the transcript of the evidence as certified by the stenographer should be stricken from the transcript upon the ground that the same had not been settled and allowed by the trial judge. This oral motion will be sustained. In the case of Grisinger v. Hubbard, 21 Idaho 469, 122 P. 853, this court had under consideration the provision of the Rev. Codes, sec. 4434, as amended by chap. 119, Laws of 1911, p. 379, and held: "This section requires that in order to review the matters contained in such transcript on appeal in the supreme court, the same must be settled by the judge, and when so settled has the force and effect of a bill of exceptions duly settled and allowed, and shall be deemed adequate to present for review any ruling appearing therein to have been excepted to, etc.; that is, this section clearly requires that the trial judge shall settle the reporter's transcript, and that such settlement is a requisite to give to the transcript the effect of a bill of exceptions." This case was also approved by this court in the case of Furey v. Taylor, 22 Idaho 605, 127 P. 676. The second ground is not a ground upon which an appeal will be dismissed, and should not be presented upon motion.

The third ground is that there is no...