Utana Mining Corp. v. Salmon River Power & Light Co.

DUNN, J. — The appeal in this ease was dismissed for failure of appellant to file' the transcript within the time fixed by Rule 26 of this court. Petition for rehearing has been filed by appellant, in which it is urged that since one or more terms of court had passed after the transcript was filed before the motion to dismiss was made the motion should have been denied under Rule 51 of this court, the contention of appellant being that under the decision in the ease of Stout v. Cunningham, 29 Ida. 809, 162 Pac. 928, wherein it is held that “failure-to file and serve transcript within the time fixed by the rules of this court is not fatal to the jurisdiction,” an objection to the filing of the transcript was waived by failure to move against it at the first term of court following the filing. Rule 26 requires that the transcript on appeal be served upon the adverse party and filed in this court within ninety days after the appeal is perfected. Rule 28 provides for an extension of time to file the transcript upon good cause shown. Rule 29 provides for the dismissal of an appeal in case transcript is not filed within the time prescribed by Rules 26 and 28. These rules have -reference to the dismissal of an appeal not only in a case in which no transcript has been filed at any time, but also in a ease in which the transcript has been filed after the expiration of the time or an extension thereof. They do not have reference to cases in which the record has been filed, either within or without the time fixed by the rules, when a party is attacking the record as filed on account of defects mentioned in Rule 51. While it is stated in Stout v. Cunningham, supra, that failure to file the transcript within the time fixed by the rules of this court is not jurisdictional, it is there clearly held that in case of such failure the appeal would be dismissed unless appellant made a showing that excused his failure in this respect. This rule has been consistently followed by this court since that time, and we adhere to the same rule in [795] this case. (Gates v. Todd Com. Co., 36 Ida. 784, 213 Pac. 1017; H. B. Lake & Co. v. Bales, 36 Ida. 142, 210 Pac. 396; Gemmell v. Collins, 36 Ida. 416, 210 Pac. 738; Parkinson v. Winzler, 36 Ida. 449, 210 Pac. 738; Blumauer-Frank Drug Co. v. First Nat. Bank, 35 Ida. 436, 206 Pac. 807; Iowa State Savings Bank v. Twomey, 31 Ida. 683, 175 Pac. 812; T. W. & L. O. Naylor Co. v. Bowman, 36 Ida. 211, 209 Pac. 1071; Dye v. Moscow State Bank, 36 Ida. 464, 212 Pac. 870; California Gulch Placer Mining Co. v. Patrick, ante, p. 661, 218 Pac. 378; National Park Lbr. Co. v. Nelson et al., ante, p. 758, 218 Pac. 367.) ' If the failure to file transcript in time in this case had been excused, and respondent had sought to raise any of the objections to the transcript that are covered by Rule 51, he would be held to have waived such objections if they were not taken at the first term after the transcript was filed. The objections to the transcript enumerated in Rule 51 are not made grounds for dismissing the appeal. That rule requires diligence on the part of respondent in raising objections to the record, after it is filed, on account of defects therein, while Rules 26, 28 and 29 are for the purpose of enforcing diligence on the part of appellant in bringing the record on appeal to this court. The petition for rehearing is denied. ■ Budge, C. J., and McCarthy and William A. Lee, JJ., concur.