H. B. Lake & Co. v. Bales

BUDGE, J. The respondent moves to dismiss the appeal in this action upon the ground that the transcripts of the record were not served and filed in this court within ninety days after the perfection of the appeal, no extension of time for the filing of said transcripts having been applied for or made. From the record it appears that the appeal was perfected on January 30, 1922, but that the transcript was not filed in this court until July 7, 1922, more than five months thereafter, and that no application for an extension of time was asked for or granted for the filing of the transcript in this court. Rule 26, which was in force at the time the appeal was perfected in this case, provides that transcripts of the record “must be served upon the adverse party and filed in this court within ninety days after the appeal is perfected,” while Rule 29 provides that in the event of a failure to file the transcript in this court within the time limited by the rule, upon motion the appeal may .be dismissed. For the latest expressions of this court in which this case is disposed of, attention is called to the case of Blumauer-Frank Drug Co. v. Nat. Bank of Weiser, 35 Ida. 436, 206 Pac. 807; Columbia Trust Co. v. Balding, 34 Ida. 579, 205 Pac. 264; Iowa State Sav. Bank v. Twomey, 31 Ida. 683, 175 Pac. 812; Woodmansee & Webster Co. v. Woodmansee, 31 Ida. 747, 176 Pac. 148. The appeal is perfected, under Rule 26, when the notice and undertaking on appeal are filed in the court below, and we do not understand Rule 26 to provide or to have been interpreted to mean “that the appeal is perfected and completed in the supreme court, where it embodies a reporter’s transcript, only when the transcript is settled and allowed by the trial court.” [144] The appeal will be dismissed and it is so ordered. Costs are awarded to respondent. Rice, C. J., and McCarthy and Dunn, JJ., concur. Petition for rehearing denied.