Gerken v. Davidson Grocery Co.

279 P. 422, 48 Idaho 75, 1929 Ida. LEXIS 12

• Court: Idaho Supreme Court
• Decided: July 20, 1929
• Docket: No. 5418.
• Status: Published

Opinion

GIVENS, J.-

— -The respondents move to dismiss this appeal because the transcript was not filed within the time granted by such extensions as were secured. Under the last extension, the transcript was clue May 26, 1929. The transcript was filed June 1, 1929.

The only excuse offered for the delay is a general statement by counsel for appellant to the effect that the delay was occasioned by the failure of the clerk to prepare the transcript within the time as extended by this court.

Respondents have filed an affidavit made by the clerk of the trial court to the effect that the transcript was prepared without delay by such clerk and that the lapse of time oc curred because tbe clerk ivas waiting for counsel for appellant to secure a certificate of the trial judge as to certain papers used by him in connection with a motion on a temporary restraining1 order.

The specific dates and her actions, detailed by the clerk, make it clear that the delay was not her fault.

The last case decided by this court where the situation was similar to that herein was Grand View State Bank v. Thams, 45 Ida. 566, 263 Pac. 1000, where the transcript was filed nine days too late. The excuse in that ease, held inadequate, was at least as valid as here and the difference in time is not sufficient to distinguish the two cases.

Appeal dismissed.

Budge, C. J., and T. Bailey Lee and Yarian, JJ., concur. Wm. B. Lee, J., dissents.