McDowell v. Title Guarantee & Trust Co.

In this action judgment in favor of the respondents was entered on December 3, 1915. On the twenty-fourth day of January, 1916, plaintiffs filed notice of appeal from the judgment. The clerk's transcript on appeal was filed on June 27, 1919, and it appears therein that on April 11, 1919, the plaintiffs by their attorney filed with the clerk of the superior court a notice requesting that a transcript of the testimony, etc., at the trial be made up and prepared. No bond to secure the reporter's fees for the transcript was filed, but the notice stated that the plaintiffs "have made arrangements with the court reporter to pay for the cost of the same." The reporter's transcript, containing 218 pages, was certified by the reporter and on the eleventh day of October, 1919, the truth and correctness thereof was certified by the judge who tried the case. This transcript was filed on the twenty-third day of October, 1919. The appellants' opening brief was filed on the twenty-sixth day of August, 1919. All of the grounds of appeal presented therein depend upon contents of the reporter's transcript. It thus appears that at the time of the filing of appellants' brief and during the entire time allowed by the rules of court for filing of respondents' brief the reporter's transcript referred to in that brief was not on file, and, therefore, there was nothing in the records of this court furnishing data upon which respondents could base any reply in their briefs. Respondents have filed no brief, and at the hearing they have objected to consideration of the matters presented in appellants' brief and to consideration of the appeal on its merits.

In the judge's certificate to the reporter's transcript statements are made showing that the reporter's transcript was filed by the reporter in the superior court on May 9, 1919, and that the judge refused to grant a certificate thereto; that thereafter, on August 15, 1919, pursuant to notice, appellants moved for an order vacating the order of May 14, 1919, whereby the court declined to certify to said transcript, *Page 402 which motion was opposed, and the court refused to vacate the order of May 14th and again refused to certify to the transcript; that thereafter, on October 11, 1919, pursuant to notice, plaintiffs again moved the court to vacate said order of May 14th, which motion was granted, and the court then made the certificate as requested by plaintiffs. By recitals in the certificate it appears that the order as finally made was based upon an affidavit showing that on December 18, 1915, plaintiffs "ordered the reporter who reported the above-entitled action, at the trial thereof, to prepare his transcript to be used on appeal, and paid said reporter therefor, on said date, five dollars on account of his charges for the preparation of said transcript; and that, thereafter, on December 29, 1915, said plaintiffs and appellants paid said reporter, on account of his charges in preparing said transcript, the further sum of thirty dollars. The defendants, interveners and respondents, by counsel, opposed said motion on all grounds heretofore urged, among said grounds of opposition being that the court has no jurisdiction of this case; that the court has no jurisdiction to grant the motion of plaintiffs and appellants; that plaintiffs and appellants have been guilty of unreasonable delay and inexcusable neglect."