WM. E. BEE, J.
This is an appeal from a judgment and from an order overruling a motion for new trial. E. F. Walton, the respondent, filed an information in the district court of Twin Falls county against D. F. Clark, the appellant, a member of the board of trustees of Independent School District No. 1, of Twin Falls county, charging him with neglect and refusal to perform the duties pertaining to his office, and praying that appellant be removed from his office and that respondent, as informer, be awarded judgment against appellant in the sum of $500. At the same time respondent filed a similar information against both W. W. Parish and G. W. Bice, two other members of the same board of trustees. The three causes were consolidated for trial, a judgment of ouster entered against each of the three trustees, and judgment for $500 was rendered in favor of respondent against each of the three trustees.
Respondent moved to dismiss the appeal from the judgment on the ground and for the reason that the transcript on appeal was not filed in this court within ninety days
after the appeal was perfected, as provided by Rule 26. The judgment was filed on August 30, 1921; the notice of appeal was filed on November 26, 1921; and the undertaking was filed on November 30, 1921. The transcript on appeal was filed in this court on May 11, 1922, more than ninety days after the appeal was perfected. On April 10, 1922, which was more than ninety days after the appeal was perfected, respondent moved to dismiss the appeal from the' judgment. The motion was not then passed on, and is now urged. The notice of motion for new trial was filed August 31, 1921, and the motion was denied November 10, 1922.
In resisting the motion to dismiss the appeal from the judgment, appellant filed herein certain affidavits in which it is stated, as a reason for the failure to have the transcript lodged in this court within ninety days after perfecting the appeal, that appellant was relying on an oral understanding between counsel that, since it was then expected that the decision of this court in the case of
Walton v. Channel,
34 Ida. 532, 204 Pac. 661, would soon be announced, and that such decision might determine the question presented in this cause, a ruling on the motion for new trial would not be pressed by the parties until such decision was announced; that if the decision did not determine the issues in this appeal, appellant would immediately take steps to secure and lodge in this court a transcript upon which the appeal from the judgment and order denying the motion for new trial could be presented; and, relying on such understanding, no steps were taken to have a transcript on appeal prepared, for the reason that it would have put appellant to considerable unnecessary expense in the event the motion for new trial was granted. Respondent’s counsel, by affidavit, denies that any understanding was had or agreement made which related to delay in preparing or filing the transcript and avers that he never consented to the postponement of the preparation or filing of the transcript.
The showing made by appellant is not a showing of diligence, but an excuse for a failure to act. No action was taken to cause the transcript to be prepared until after the motion to dismiss was made. The order of the trial judge for the preparation of the reporter’s transcript was not made until April 1, 1922, two months after the transcript should have been lodged in this court. The failure to comply with the rules is not chargeable to the clerk or the reporter of the trial court, as hab been frequently the case where appeals have been dismissed because of a failure to file the transcript in time. If there is a justification for Rule 26, it would seem to be peculiarly applicable to a ease like this, where no steps were taken by appellant to secure a transcript until after the expiration of the time for filing the transcript in this court, and until after the filing of a motion to dismiss the appeal.
(Blumauer-Frank Drug Co. v. First Nat. Bank,
35 Ida. 436, 206 Pac. 807;
National Park Lumber Co. v. Nelson,
37 Ida. 758, 218 Pac. 367;
California Gulch Placer Min. Co. v. Patrick,
37 Ida. 661, 218 Pac. 378;
Utana Mining Corp. v. Salmon River Power & Light Co.,
37 Ida. 793, 218 Pac. 789.)
Appellant insists that respondent has waived his right to insist upon a dismissal of the appeal because of the numerous stipulations between the parties extending the time to file briefs, by not objecting to a settlement of the reporter’s transcript after the ninety-day period, and because of orders by members of this court extending the time to lodge the transcript on appeal in this court. It was held in
Lucas v. Nampa,
37 Ida. 763, 219 Pac. 596, that a failure to file a transcript on appeal within the time provided by the rules was waived by subsequently entering into a stipulation with respect to filing appellant’s brief. The rule there announced does not apply to the situation presented in this case. Here no step was taken to file the transcript within ninety days. The motion to dismiss was made before appellant had made any effort to procure the transcript. In many of the stipulations, it was expressly stated that no rights were waived in connection with the motion to
dismiss the appeal. Appellant was not misled by the stipulation extending time, or in failing to object to a settlement of the reporter’s transcript, because the motion to dismiss had been made and was pending. The orders of this court extending the time were made after the time to lodge the transcript had expired and after the motion to dismiss the appeal had been made, and were, therefore, without prejudice to the right of the respondent to insist on his motion to dismiss the appeal.
(Intermountain Association of Credit Men v. Rexburg Farmers’ Society of Equity,
38 Ida. 121, 220 Pac. 114)
The pendency of a motion for a new trial does not extend the time within which to file a transcript on appeal from the judgment.
(Miller v. Prout,
32 Ida. 728, 187 Pac. 948.) In view of our conclusion that there is neither a showing of diligence nor.a waiver of respondent’s right to insist upon a dismissal, the motion to dismiss the appeal from the judgment is sustained.
Anticipating the action of the court on the motion to dismiss the appeal from the judgment, counsel for appellant insists that certain of the questions presented by them, relating to the merits of the action, should be considered on the appeal from the order overruling the motion for a new trial, appellant having asked for a new trial on the grounds that the “decision of the court is against law” and the insufficiency of the evidence. Respondent, however, calls attention to the fact that appellant has nowhere specified as error the action of the trial court in overruling the motion for new trial, and insists that the judgment must therefore be affirmed. Appellant makes twenty-five assignments of error, none of which refer in any manner to the action of the trial court in overruling the motion for new trial; and at no place in appellant’s brief is it specifically stated that the court erred in denying a new trial.
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WM. E. BEE, J.
This is an appeal from a judgment and from an order overruling a motion for new trial. E. F. Walton, the respondent, filed an information in the district court of Twin Falls county against D. F. Clark, the appellant, a member of the board of trustees of Independent School District No. 1, of Twin Falls county, charging him with neglect and refusal to perform the duties pertaining to his office, and praying that appellant be removed from his office and that respondent, as informer, be awarded judgment against appellant in the sum of $500. At the same time respondent filed a similar information against both W. W. Parish and G. W. Bice, two other members of the same board of trustees. The three causes were consolidated for trial, a judgment of ouster entered against each of the three trustees, and judgment for $500 was rendered in favor of respondent against each of the three trustees.
Respondent moved to dismiss the appeal from the judgment on the ground and for the reason that the transcript on appeal was not filed in this court within ninety days
after the appeal was perfected, as provided by Rule 26. The judgment was filed on August 30, 1921; the notice of appeal was filed on November 26, 1921; and the undertaking was filed on November 30, 1921. The transcript on appeal was filed in this court on May 11, 1922, more than ninety days after the appeal was perfected. On April 10, 1922, which was more than ninety days after the appeal was perfected, respondent moved to dismiss the appeal from the' judgment. The motion was not then passed on, and is now urged. The notice of motion for new trial was filed August 31, 1921, and the motion was denied November 10, 1922.
In resisting the motion to dismiss the appeal from the judgment, appellant filed herein certain affidavits in which it is stated, as a reason for the failure to have the transcript lodged in this court within ninety days after perfecting the appeal, that appellant was relying on an oral understanding between counsel that, since it was then expected that the decision of this court in the case of
Walton v. Channel,
34 Ida. 532, 204 Pac. 661, would soon be announced, and that such decision might determine the question presented in this cause, a ruling on the motion for new trial would not be pressed by the parties until such decision was announced; that if the decision did not determine the issues in this appeal, appellant would immediately take steps to secure and lodge in this court a transcript upon which the appeal from the judgment and order denying the motion for new trial could be presented; and, relying on such understanding, no steps were taken to have a transcript on appeal prepared, for the reason that it would have put appellant to considerable unnecessary expense in the event the motion for new trial was granted. Respondent’s counsel, by affidavit, denies that any understanding was had or agreement made which related to delay in preparing or filing the transcript and avers that he never consented to the postponement of the preparation or filing of the transcript.
The showing made by appellant is not a showing of diligence, but an excuse for a failure to act. No action was taken to cause the transcript to be prepared until after the motion to dismiss was made. The order of the trial judge for the preparation of the reporter’s transcript was not made until April 1, 1922, two months after the transcript should have been lodged in this court. The failure to comply with the rules is not chargeable to the clerk or the reporter of the trial court, as hab been frequently the case where appeals have been dismissed because of a failure to file the transcript in time. If there is a justification for Rule 26, it would seem to be peculiarly applicable to a ease like this, where no steps were taken by appellant to secure a transcript until after the expiration of the time for filing the transcript in this court, and until after the filing of a motion to dismiss the appeal.
(Blumauer-Frank Drug Co. v. First Nat. Bank,
35 Ida. 436, 206 Pac. 807;
National Park Lumber Co. v. Nelson,
37 Ida. 758, 218 Pac. 367;
California Gulch Placer Min. Co. v. Patrick,
37 Ida. 661, 218 Pac. 378;
Utana Mining Corp. v. Salmon River Power & Light Co.,
37 Ida. 793, 218 Pac. 789.)
Appellant insists that respondent has waived his right to insist upon a dismissal of the appeal because of the numerous stipulations between the parties extending the time to file briefs, by not objecting to a settlement of the reporter’s transcript after the ninety-day period, and because of orders by members of this court extending the time to lodge the transcript on appeal in this court. It was held in
Lucas v. Nampa,
37 Ida. 763, 219 Pac. 596, that a failure to file a transcript on appeal within the time provided by the rules was waived by subsequently entering into a stipulation with respect to filing appellant’s brief. The rule there announced does not apply to the situation presented in this case. Here no step was taken to file the transcript within ninety days. The motion to dismiss was made before appellant had made any effort to procure the transcript. In many of the stipulations, it was expressly stated that no rights were waived in connection with the motion to
dismiss the appeal. Appellant was not misled by the stipulation extending time, or in failing to object to a settlement of the reporter’s transcript, because the motion to dismiss had been made and was pending. The orders of this court extending the time were made after the time to lodge the transcript had expired and after the motion to dismiss the appeal had been made, and were, therefore, without prejudice to the right of the respondent to insist on his motion to dismiss the appeal.
(Intermountain Association of Credit Men v. Rexburg Farmers’ Society of Equity,
38 Ida. 121, 220 Pac. 114)
The pendency of a motion for a new trial does not extend the time within which to file a transcript on appeal from the judgment.
(Miller v. Prout,
32 Ida. 728, 187 Pac. 948.) In view of our conclusion that there is neither a showing of diligence nor.a waiver of respondent’s right to insist upon a dismissal, the motion to dismiss the appeal from the judgment is sustained.
Anticipating the action of the court on the motion to dismiss the appeal from the judgment, counsel for appellant insists that certain of the questions presented by them, relating to the merits of the action, should be considered on the appeal from the order overruling the motion for a new trial, appellant having asked for a new trial on the grounds that the “decision of the court is against law” and the insufficiency of the evidence. Respondent, however, calls attention to the fact that appellant has nowhere specified as error the action of the trial court in overruling the motion for new trial, and insists that the judgment must therefore be affirmed. Appellant makes twenty-five assignments of error, none of which refer in any manner to the action of the trial court in overruling the motion for new trial; and at no place in appellant’s brief is it specifically stated that the court erred in denying a new trial.
Rule 42, among other things, provides: “The brief of the appellant shall also contain' a distinct enumeration of the several errors relied on.” In a large number of decisions, including
Morton Realty Co. v. Big Bend Irr. & Min. Co.,
37 Ida. 311, 218 Pac. 433;
Hill v. Porter,
38 Ida. 574, 223 Pac. 538, and
Intermountain Farmers’ Equity v. Norris,
39 Ida. 685, 229 Pac. 745, this court refused to consider certain insufficient assignments of error.
Appellant insists that under
Smith v. Wallace National Bank, 21
Ida. 441, 150 Pac. 21, it is not necessary to assign as error the action of the court in overruling the motion for new trial. In my opinion that case does not so hold. There the appeal was from an order granting a new trial, and this court said that the assignment was not “in the
usual form”
and that “no other action of the trial court is complained of.” Here the action of the court in overruling the motion for new trial is not assigned as error, and there are at least twenty-five other actions of the trial court complained of. In
Glover v. Brown,
32 Ida. 426, 184 Pac. 649, Mr. Justice Budge said:
“Moreover, these appellants are in no position to urge the question of
bona fide
purchase upon this appeal; first, because they have made no assignment of error raising the question in this court.....”
See, also,
Perrin v. Union Pacific R. Co.,
59 Utah, 1, 201 Pac. 405;.
Lawyer-Cuff v. Bland,
79 Okl. 307, 193 Pac. 525;
Davis v. McGilbray,
81 Okl. 42, 196 Pac. 339.
Not desiring, however, to place what might be thought to be a too technical construction upon the rule stated in
Smith v. Wallace Nat. Bank, supra,
we have decided to consider the appeal from the order denying a new trial. In so doing we will consider only the two grounds upon which the motion was based. The first ground, that the evidence is insufficient to sustain the decision, cannot be considered, because the notice of motion for new trial specifies no particulars in which the evidence is insufficient, nor does the record show that notice of such specification was filed and served within the time provided by C. S., sec. 6890, or at all.
Counsel for appellant contends that under the assignment that the decision is against law, the court must consider :
First, does the complaint state a cause of action? As has been repeatedly held by this court, that question cannot be considered on a motion for new trial.
(Naylor v. Lewiston R. Co.,
14 Ida. 789, 96 Pac. 573;
Maw v. Coast Lumber Co.,
19 Ida. 396, 114 Pac. 9;
Wright v. Stewart,
32 Ida. 490, 185 Pac. 69.)
Second, has the court found upon all the material issues in the case? The contention of the appellant is that the court failed to find that the alleged omissions in the performance of defendant’s duties occurred purposely, intentionally or consciously. The complaint does not allege that the neglect charged occurred purposely, intentionally or consciously, so that no material issue on these points was raised. Such a finding would go beyond the allegations of the complaint. Under the authorities above cited, the defects of the complaint in this respect, if they existed, are not reviewable upon appeal from an order denying a new trial.
Third, do the conclusions of law follow from the facts found by the court? And fourth, is the judgment of the court sustained by and does it necessarily follow the complaint, findings of fact and the conclusions of law? These questions could have been raised on an appeal from the judgment, but not upon a motion for new trial, under the assignment that the decision is against law. A new trial is a re-examination of an issue of fact. (C. S., see. 6887.) That the court may have erred in applying the law to the facts as found is no ground for re-examining the facts; but the remedy is by appeal from the judgment.
(Caldwell v. Wells,
16 Ida. 459, 101 Pac. 812 (citing many of the cases which are also relied upon in
In re Keating’s Estate,
162 Cal. 406, 122 Pac. 1079); Hayne, New Trial and Appeal, sec. 1; Spelling, New Trial and Appellate Practice, see. 8.)
Motion to dismiss the appeal from the judgment granted.
Order denying motion for new trial affirmed.
Costs to respondent.
McCarthy, C. J., and Brinck, District Judge, concur.