Shadville v. Barker

MB. CHIEE JUSTICE BRANTLY delivered the opinion of the court. Motion to dismiss the appeals herein from the judgment and an order denying a new trial on the ground that the transcript was not filed with the clerk of this court within sixty days after the appeals were perfected, as required by Subdivision 2 of Rule IV of the rules of this court. Erom the papers filed in support of the motion it appears that the appeals were perfected on August 3,1901. The motion to dismiss was filed on October 8. The typewritten transcript was lodged with the clerk on October 22. This was furnished to counsel for the appellant, upon demand, not later than September 11, or twenty-seven days prior to the filing of the motion. Counsel for appellant attempt to excuse their neglect to lodge the same with the clerk of this court within the prescribed time, on the ground that the original copy furnished by the clerk of the district court was not prepared in conformity with. [47] the rules of this court as to form and contents, and that the fault lies with that officer, and not with them. It appears, however, that though, at the time they received the transcript from the clerk, on September 11, they still had eighteen days within which to have the transcript corrected, and to comply with the rule, they failed and neglected to do so; for it appears that at no time thereafter did they demand of the clerk that he correct the copy furnished, or prepare and furnish one meeting the requirements of the rule of this court as to form and contents. Nor have they yet done so, as they admit that the transcript now in the hands of the clerk of this court is the defective copy originally furnished them by the clerk of the district court. While the rule invoked by respondents provides that, if the delay in filing the transcript has been without laches on the part of the appellant, his appeal will not be dismissed for such delay until a reasonable time has been allowed for filing it, no such sufficient excuse has been rendered in this case why the penalty should not be inflicted. (Decided December 2, 1901.) It is therefore ordered that the appeals be dismissed. Dismissed.