Nielson v. Board of County Commissioners

GIVENS, J. Respondents move to dismiss three appeals, different only as to parties respondent, on the ground that the transcripts were not filed within the time. provided by Rule 26 of this court and no extensions were secured. Appellants admit the above facts but claim there was excusable neglect in that the court reporter had been unavoidably delayed in getting out the transcripts but had advised counsel that he hoped to get them out before the time limit; that Otto E. McOutcheon, counsel for appellants, had a case before the circuit court of appeals in California and in order to make his appearance there was compelled to leave Oct. 27th, the time for filing the transcripts expiring Oct. 20th, and he *483 told his stenographer to give O. E. McCntcheon, his assistant, the following note of instructions: “Transcripts for County Cases to Sup. Court are due 10/20. If they come proper copies should be served on Holden & Mote (2 cases) and Crowley (1 case). Get extensions. ’ ’ That by the last two words he meant to direct that extensions be secured from the court but that his assistant misunderstood and did not do so. This court has never held that failure to obtain an extension of time is conclusive and absolute proof of negligence which cannot be rebutted. (California Gulch P. Min. Co. v. Patrick, 37 Ida. 661, 218 Pac. 378, and cases cited.) It does not appear that the appellants were in any way responsible for the delay in the preparation of the reporter’s transcripts, which have not yet been completed; therefore, appellants’ failure to secure the extension of time has in no way prejudiced respondents nor has it delayed the completion and filing of the record. The securing of an extension would not have expedited the appeals in any way. Motion denied. 'Win. E. Lee and Taylor, vFJ., concur. Budge, J., sat at the hearing but took no part in the decision.