Gates v. Todd Commercial Co.

213 P. 1017, 36 Idaho 784, 1923 Ida. LEXIS 20

• Court: Idaho Supreme Court
• Decided: March 17, 1923
• Status: Published

Opinion

BUDGE, C. J.

Respondent has moved to dismiss the appeal in this case upon the ground that the transcript was not filed in this court within the 90-day period prescribed by Rule 26, or any extension thereof as provided by Rule 28.

The motion to dismiss -is based upon the certificate of the clerk of the district court, from which it appears that the appeal was perfected on Oct. 23, 1922, and that the reporter’s transcript was settled by the trial judge on January 29, 1923. It further appears that the completed transcript was filed in this.court upon January 31, 1923, or just 100 days after the appeal was perfected, and that no extension of time was applied for.

In the case of Iowa State Savings Bank v. Twomey, 31 Ida. 683, 175 Pac. 812, it was held that: “Where a transcript on appeal has not been filed within the time limited by the rules, or an extension thereof, such appeal will, upon motion, be dismissed in the absence of a sufficient showing of •diligence by the appellant.”

Also in the same case: “A failure to apply for an extension of time within which to file a transcript negatives the question of diligence.”

This case has been followed and the same rule applied in the late cases of Blumauer-Frank Drug Co. v. First National Bank, 35 Ida. 436, 206 Pac. 807; Lake & Co. v. Bales, ante, p. 142, 210 Pac. 396; Gemmel v. Collins, ante, p. 416, 210 Pac. 738; Parkinson v. Winzler, ante, p. 449, 210 Pac. 738.

The appeal should be dismissed, and it is so ordered.

McCarthy, Dunn and W. A. Lee, JJ., concur.