Kernaghan v. Hall

Morrill, C. J. —We have examined the application of the plaintiff in error, wherein it is sought to have the above-entitled cause docketed, and consider that the applicant has not shown good cause why the record was not filed in due time. The statutes require forty days after the perfection of an appeal or writ of error to elapse as the least time in which the party is required or permitted to file the record. The party is also allowed two years for this purpose, [to prosecute error.] It can certainly be known at the time of the rendition of a final judgment whether a cause can he prepared for the subsequent succeeding term of the Supreme Court, and if it cannot, the party can just as easily take the cause by writ of error at the following term. There are two parties interested in all legal proceedings, and we suppose that not the least important reason why forty days’ notice to the opposite party was required to be given before a cause could be placed on the Supreme Court docket was to enable him to prepare the necessary arguments. The statutes also authorize'clerks to have deputies, and it is no excuse for a clérk to say he did not have time to prepare a record of ordinary service in one month. We further consider that, by delaying to send the record until the last hour that by any possibility would be barely [129] sufficient to reach its destination in the designated time and when the chances are adverse, is not using the diligence required. • The cause under consideration will serve to illustrate our views as well as any. The counsel, who has heen notified that application would be made to have this cause docketed, was here at the time the Cameron district was called, and has returned home. He did his duty in coming to the court, and had reason to suppose the cause would be on the docket. Should the cause be now docketed, it would necessarily be heard ex parte, or the cause continued. The statute requires good cause to be shown why a record was not docketed in due time. Of course it will not be possible to say what constitutes good cause, but we think it may safely be said that such negligence as has been shown in this cause, and which is the only cause shown, is 'not a good cause. The application is Refused.