Welch v. Spokane International Railway Co.

• Decision Date: 12 January 1920
• Citation: 32 Idaho 668,186 P. 915
• Parties: A. D. WELCH, Respondent, v. SPOKANE INTERNATIONAL RAILWAY COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

186 P. 915

32 Idaho 668

A. D. WELCH, Respondent, v. SPOKANE INTERNATIONAL RAILWAY COMPANY, a Corporation, Appellant

Supreme Court of Idaho

January 12, 1920

APPEAL AND ERROR-MOTION TO DISMISS-TIME FOR FILING TRANSCRIPT.

1. Where it is shown that it is proposed to incorporate in the transcript on appeal a reporter's transcript of the testimony, a motion to dismiss the appeal upon the ground that the transcript was not filed in this court within the time allowed by law, and the rules of the court, is premature if made before the settlement thereof, or within sixty days thereafter.

2. When a transcript is deposited with the clerk of this court for filing more than six months after the appeal is perfected but within sixty days after the reporter's transcript of the testimony contained in the record has been settled, or within a valid extension of said sixty-day limit, a showing of due diligence is required before the same can be filed. This showing may be made properly when the transcript is offered for filing after the expiration of the six months period.

3. Under C. S., sec. 6886, either party may require the clerk to forward a reporter's transcript to the trial judge for settlement at the expiration of the time limited for designating errors therein.

APPEAL from the District Court of the Eighth Judicial District, for Boundary County. Hon. John M. Flynn, Judge.

Motion to dismiss appeal. Denied.

Motion to dismiss denied.

Herman H. Taylor, for Appellant, files no brief.

O. C Wilson and G. H. Martin, for Respondent.

Rule 26 of this court requires that "in no case shall a transcript on appeal be filed in this court more than six months after the perfecting of the appeal except by order of the court or one of the justices thereof upon a showing of due diligence." (Stine Lumber & Shingle Co. v Hemenway, 32 Idaho 153, 179 P. 505.) This was not done and the appeal should therefore be dismissed, especially in view of the fact that the order denying the motion for a new trial was not made until after the lapse of fourteen months from the entry of judgment. (McCrea v. McGrew, 9 Idaho 382, 75 P. 67; Smith v. American Falls etc. Co., 15 Idaho 89, 95 P. 1059; Wood v. Tanner, 15 Idaho 689, 99 P. 123, 1053.)

Where the transcript on appeal is not served and filed within the time limited by the rules of this court, the appeal will be dismissed without notice. (State v. Jewett, 27 Idaho 147, 147 P. 288.)

RICE, J. Morgan, C. J., and Budge, J., concur.

OPINION

RICE, J.

Respondent moved to dismiss the appeal upon the ground that the transcript was not filed in this court within the time allowed by law and the rules of the court; that it had not yet been filed, and more than six months had elapsed since the appeal was perfected.

The appeal was perfected March 14, 1919. An order was duly made for reporter's transcript in lieu of bill of exceptions. This transcript at the time the motion was made had not been settled by the trial court, and more than six months had elapsed after the appeal was perfected.

The motion to dismiss the appeal is premature. It is provided in rule 26 of the rules of this court that in all cases in which the record on appeal shall contain a reporter's transcript of the testimony, the record on appeal must be served and filed within sixty days after the reporter's transcript has been duly settled. Since the reporter's transcript had not been settled when the motion was made, the sixty-days time within which the transcript might be filed had not begun to run.

The time limited by rule 26 within which a transcript on appeal must be filed is sixty days after the appeal is perfected unless the transcript on appeal contains a reporter's transcript of the testimony. If the transcript contains a reporter's transcript of the testimony, the time limited for filing transcript in this court is sixty days after settlement thereof by the trial court. It is this sixty-day limit which must be extended by order of the court, or a justice thereof, as provided for in rule 28, in order to keep...