Casey v. Bell

FLY, J. The transcript in this case should have been presented for filing to the clerk of this court on or before October 17, 1910. It was presented on October 28, 1910, and the clerk quite properly refused to file it. In the motion for leave to file the transcript it appears that the transcript was ready and could have been and was obtained by appellant three weeks before October 17, 1910; but he-held the transcript until October 13th when he sought to have inserted in the record a purported copy of a certain bill of exceptions, in lieu of the original,-which had been lost or misplaced. The clerk refused to put the substitute in the record. Instead of filing the' transcript as soon as it was delivered to him-by the clerk and taking the necessary steps afterwards to perfect the record, appellant filed a motion to substitute before the trial judge, and action was delayed on the motion 479 until after the time for filing had expired. Had appellant acted promptly he could have filed the transcript in this court before October 17, 1910, but he served notice of the motion to substitute on October 15, 1910, and made no effort to procure a hearing on the motion until October 19th, when the time for filing had expired. The clerk, it appears from the affidavit of Driscoll, the deputy district clerk, had delivered the original bill of exceptions to appellant’s attorney, M. W. Stanton, and it was not returned to him. It was afterwards found in the office of the court stenographer. No valid cause for the delay in filing the transcript is assigned; but, on the other hand, it appears from the showing made by appellant that the record was deliberately held by appellant while he was discussing the matter of a lost bill of exceptions with the deputy clerk, and having notice of a motion to substitute served on appellees. If the transcript had been filed in this court as soon as obtained by appellant, as it should have been filed, the proceedings in substitution could have been had, and a writ of certiorari obtained from this court to perfect the record. Appellant had a full and complete remedy for perfecting the record after reaching this court, and not having availed himself of it, he has failed to present good cause for his delay in filing the transcript. The motion is denied.