Boyd v. Hawkins

Ohalmebs, C. J., delivered the opinion of the court. The appellant was negligent in not taking steps earlier to ascertain whether the transcript had been forwarded to this court, and, under ordinary circumstances, we would certainly sustain the motion to docket and dismiss the case. But it is difficult to see what the appellant could have done to expedite the hearing of the appeal in this court. If he had appeared here on the first day of our term, and informed us that he had taken and perfected an appeal in the lower court, but that after he had done so the record had been there lost, so that it was impossible for him to have a transcript made out for this court, we would probably have directed that the case be placed on our docket, and continued until such time that opportunity was afforded in the lower court to substitute papers, and to have a transcript of the substituted record made out and forwarded to us. This would inevitably have produced a delay as long as that which must now ensue, so that no action that the appellant could possibly have taken would have in the least expedited a hearing here. The object of our rules is to prevent all avoidable delays. But where owing to the peculiar circumstances of a case the delay must necessarily be the same, no matter what action the appellant takes, there can be no motive for enforcing the rules where an unjust result may possibly be produced. We will now, therefore, do all that we could have done if the matter had been more promptly brought to our attention. We direct our clerk to docket the case on the petition for appeal and bond now on file, and will continue the case until such time as will afford the appellant an opportunity in the lower court to substitute the lost papers. We [327] will sustain a motion to dismiss the appeal whenever it is shown hereafter that there has been unnecessary delay in doing this. Motion overruled.