Knudson v. Frost

Chief Justice Campbell delivered the opinion of the court: The transcript lodged here contains none of the so-called appealable orders. It does not show that an appeal was prayed or granted, or that the amount of the appeal bond was fixed, or that the clerk was authorized to approve it. Indeed, the record is barren of any orders or matters which are essential to the right of the complaining party to be heard upon an appeal in this court. The appellant does not claim otherwise. On the other hand he confesses the motion and asks leave to withdraw the transcript, heretofore filed, for an amendment, suggesting an omission, and claims that the record of the court below shows that essential orders, absent from ■ this transcript, were, in fact, made by the trial court. [341] The only thing for decision is. whether leave to make the desired amendment should be granted, or whether the motion to dismiss the appeal should be sustained. Rule VIII of this court reads: “Clerks of inferior courts in making up an .authenticated copy of the record in civil cases shall certify to this court so much of the record, arranged in chronological order, as the appellant or plaintiff in error may, by praecipe, indicate.” The rules of the court have the force and effect of a statute. They are made to be observed, not to be ignored. If an appellant or plaintiff in error chooses to delegate to the clerk of the court the preparation of the transcript of the record, without designating by praecipe what parts thereof to certify, if such transcript • so prepared is insufficient, the fault lies with the litigant, not with the clerk. Appellant says that the defect in the record was the result of some oversight, but does not say what the oversight was, or whose it was. He does not say that he filed the praecipe with the clerk of the district court, or that he made any examination whatever of the transcript which the' clerk authenticated and delivered to him. This question involves an important rule of practice. It has been enforced many times in cases' similar to this, and in dismissing this appeal we are but following our established practice. As it is not too late for the suing out of a writ of error, an order will be entered permitting appellant to withdraw his transcript heretofore filed and his appeal will be dismissed without prejudice. Appeal dismissed without prejudice. Mr. Justice Gabbert and Mr. Justice Musser concur.