Baird v. Matteson

Spalding, Oh. J. It is apparent that, standing alone, the motion to dismiss the appeal should be granted. Delay in doing anything toward prosecuting an appeal from September 18, 1911, to March, 1914, or at least from the writing of the letter to the clerk, November 7, 1911, until the submission of a motion to dismiss the appeal in March, 1914, is such delay as to require a dismissal of the appeal, in the absence of some extraordinary reasons excusing appellants for their delay. We do not construe the letter of November 7th to the clerk as a [166] request to transmit the record to the supreme court, but even if it be construed as a direction to him to so transmit it, it also contained the request that counsel be notified when it was sent. Not receiving such notice, counsel was thereby apprised of the fact that it had not been transmitted, and whatever the primary duty of the clerk may have been in the premises, it became the duty of appellant to follow the matter up, and cause the record to be transmitted. Furthermore, under rule 13 of this court, which went into effect September 1, 1913 [23 N. D. xxxix, 141 N. W. viii], it was the duty of the clerk of this court to notify counsel of the failure of an appellant to file his brief, and appellant knew that he had filed no brief, and because the clerk did not call his attention to his failure to file a brief he was thereby charged with knowledge that the record was not on file in this court. See also rules 12 and 15. Notwithstanding all these facts, counsel concededly gave the appeal no further attention until March, 1914. It is further suggested that appellant is excused because respondent did not notify him to send up the record, as he was permitted to do by the rules of this court. This rule, however, does not provide the only method for securing the dismissal of an appeal. Unwarranted delay, or the abandonment of the appeal, furnishes ground for its dismissal, notwithstanding respondent may not have pursued the alternative course of requiring the record transmitted, or of transmitting it himself. The only other question which need be considered is whether the facts to which we have referred, relating to the discovery of the publication of the notices of the expiration of redemption, furnish a valid reason for not dismissing the appeal. We need not enter into the merits of the case further than to say that the claim of appellants, that the submission of such notices of expiration of redemption in evidence would have falsified the record and resulted in a judgment for appellants in the trial court, is controverted. It is evident that the purpose for which the appellants desire the record remanded to the trial court is in effect to enable them to make a motion for a new trial on the ground of newly discovered evidence, though they term it a motion to open the judgment and permit the submission of further evidence. Its appellation does not change the legal effect of the proceeding proposed. It is elementary that for newly discovered evidence to furnish a ground for a new trial, due diligence must be shown in the attempt to [167] discover it in time to make nse of it on the trial. We have grave doubts of the sufficiency of the showing in this respect to have warranted the trial court in granting a new trial, had the application been made before appeal and without delay after trial. It is alleged that search was made in the auditor’s office, and that the present auditor and his predecessors had been examined on the subject, and were unable to furnish any information showing publication of the notices. It nowhere appears that the files of newspapers in the county had been searched. The Transcript, the paper in which it is now alleged they were published, is published at the county seat of Eddy county, where the case was tried, and the duty may have devolved upon counsel to search among the files of that paper, notwithstanding the failure to obtain any evidence through the medium of the auditors or their office. However this may be, there was further delay. This evidence was discovered May 8, 1912, one year and ten months before it was brought to the attention of this court, and long after the case should have been, under the usual methods of procedure, disposed of. We cannot say what effect such delay in presenting it might have upon the ability of respondent to furnish further evidence in support of his action. The evidence of such publication, if of any avail, should have been presented at the earliest possible moment after its discovery, and it is now too late to make it available on motion for a new trial. Hence it would be useless for this court to remand the record as requested. We may say on behalf of the attorneys who presented the matter to this court, that there appear to have been counsel employed in Minneapolis and in New Eoclcford, as well as in Jamestown, and that counsel of record in this court appear not to be wholly responsible for the failure to present the matter seasonably. We are of the opinion that the facts narrated furnish no valid reason why the motion to dismiss the appeal should not be granted. It is granted. See rule 15 (23 N. D. xxxix, 141 N. W. viii).