Wytoski v. Kiolbassa

Hamer, J. This is an appeal from a judgment of the district court dismissing an appeal of plaintiff from' a judgment of the county court which dismissed his action. The judgment in the county court was rendered on February 2, 1910. An appeal bond was duly filed, and a transcript prepared and filed in the district court' on March 3, 1910. No further proceedings were taken until December 5, 1911. A motion was then filed by defendant to dismiss the appeal on account of the failure of plaintiff to file his petition within 20 days from the filing of the transcript, and a showing that no petition had ever been filed. On December 14, 1911, an order was made upon the plaintiff to show cause' by December 24, 1911, why the motion for dismissal should not be sustained. On December 21, plaintiff moved for leave to file his petition. He filed his own affidavit and that of his attorney in support of his motion. These affidavits are not preserved by a bill of exceptions, and therefore cannot be considered. It is not shown that the court has abused its discretion. The judgment of the district court is therefore Affirmed.