Meyers v. Gregans

Per Curiam. We would be justified in dismissing this appeal as there have been no briefs filed by either party. We do not consider ourselves bound to treat cases which are thus practically ignored by the parties themselves. By treating this appeal we do not intend to establish a precedent in cases that are presented in such condition. The action of the District Court in dismissing the appeal from the judgment of the justice of the peace is the only error assigned. Section 1760, and that portion of Section 1762, Code of Civil Procedure, relating to appeals in such cases, are as follows : “Section 1760. Any party dissatisfied with a judgment rendered in a civil action in a police or justice’s court, may [452] appeal therefrom to the District Court of the county, at any time within thirty days after the rendition of the judgment. The appeal is taken by filing a notice of appeal with the justice or judge, and serving a copy on the adverse party or his attorney. ” “Section 1762. Upon receiving the notice of appeal, and filing an undertaking as required in the next section, the justice or judge must, within ten days, upon the payment of the fees therefor, transmit to the clerk of the District Court a certified copy of his docket, the pleadings, all notices, motions and other papers filed in the cause, the notice of appeal, and the undertaking filed. * * *” The notice of appeal from the judgment of the justice was given the day after judgment was rendered, and the appeal bond given the same day. It is conceded that the transcript of the justice’s docket was not filed in the District Court for 32 days after the date of the judgment appealed from. It was the duty of the appellant, if he wanted the justice to certify and transmit the transcript of his docket, to pay or tender the legal fees therefor. The justice was not required to perform this duty until after his fees had been paid or tendered. The appellant, in the affidavit filed in the District Court in opposition to the motion to dismiss the appeal, admits that no demand was made upon the justice for such transcript until the afternoon of the 14th day of August, and that the justice was so busy then with the trial of other cases that he could not make it out. No reason is shown why the whole of the time for perfecting the appeal and filing the transcript in the District Court was permitted to elapse without the appellant’s taking some steps to have these things done. If the appellant could excusably delay the doing of these things for 32 days, why not for 100 or indefinitely ? The affidavit of appellant shows laches — negligence in perfecting the appeal. The District Court passed upon the question as to whether the negligence and laches of appellant were excused or excusable, and evidently found against the appellant. This was a matter largely within the discretion of the District Court, and we [453] cannot say from the record that the court abused its discretion in this respect. The judgment appealed from is affirmed. Affirmed.