Cathers v. Glissman

Fawcett, 0. This case made its first appearance in this court on January 12, 1907, by the filing by. appellant of a certified copy of the judgment below, together with a príncipe and assignment of errors. Nothing further was done in this court until September 7, 1907, when appellant filed in this court a motion to supply record, and delivered to the clerk with said motion a transcript of the proceedings in the district court, a bill of exceptions, and a copy of his brief. No notice of this motion was ever served upon appellee or his attorney, nor was said motion ever presented to the court. Nothing further was done by appellant until the morning of the day when the case was called for final argument and disposition, when appellant appeared and filed another motion suggesting a diminution of record, and asking leave to file certified copies of such record, omitted, as he alleges, by mistake, which certified copy he tendered with the motion. The case, in this state of the record, was submitted to this department. Attorneys for appellant and appellee both appeared, appellant claiming the right to supply the deficiencies in the record at this time, and appellee contending that the application should be denied, and that the judgment of the court below should be affirmed or the appeal dismissed. On consideration of the matter, we are all of the opinion that appellee’s contention should be sustained; that we [385] must consider the several applications of appellant to supply the record and to file the bill of exceptions as being made of this date. We do not think that such laches should be encouraged by the court. To permit appellant to do as he now desires would be encouraging a practice which would completely unsettle the procedure in this court, and would leave litigants to suffer from the gross lack of diligence of attorneys representing their opponents. We therefore recommend that the motions of appellant for leave to supply record and his suggestions of diminution of record be overruled, and, no error appearing in the certified copy of the judgment filed January 12, 1907, that the judgment of the district court be affirmed. Ames and Calkins, CC., concur. By the Court: For the reasons stated in the foregoing opinion, the motions of appellant for leave to supply record and his suggestions of diminution of record are overruled, and the judgment of the district court is Affirmed.