Klarquist v. Security Trust & Savings Bank

HOUSER, J.

This matter involves, first, a motion by respondent to dismiss an appeal, and, secondly, a motion by appellant that it be relieved from its default in failing to file its transcript on appeal "within the time permitted under the rules of this court. A lapse of sixty-six days occurred between the settling and filing of the bill of exceptions in the superior court and .the date of the notice to dismiss the appeal, and the transcript on appeal was not offered for filing until two weeks later.

[549]

An affidavit by counsel for appellant in opposition to the motion to dismiss the appeal, as well as in support of its motion to be relieved from its default in not having filed the transcript within the forty-day period permitted under rule II of this court (176 Pac. vii), shows that “both prior and subsequent to the 18th day of December, 1922, affiant had conversations with Mr. Redwine, attorney for the respondent, the substance of which was that Mr. Redwine wanted to know if the case could not be settled, if the bank would not consider a compromise, etc., to which affiant replied that he wished to look more thoroughly into the law on the question and would like to have a little more time to look into the matter, to which Mr. Redwine answered that that would be all right and that affiant need not be in any rush to file the transcript, or words to that effect.” The affidavit also shows that counsel for appellant had been under “an unusual pressure of other work” during the period immediately preceding the time when the transcript should have been filed.

Counsel for respondent in his answering affidavit vigorously denies ever having had any such conversation or conversations either in substance or effect.

Respondent having shown that appellant has not complied with the rule of this court in the matter of filing its transcript on appeal, the burden rests upon appellant to show good reason for its failure in order that it should he relieved from its default. Assuming that counsel for appellant is correct in his recollection of what occurred, the fact that there was a possible compromise of the judgment discussed and that counsel for respondent stated that “affiant need not be in any rush to file the transcript” is not equivalent to a stipulation for an extension of time to do so; although this court does not wish to be understood that by either words or by acts may one counsel lull the other into a sense of security and thus take an unfair advantage. So far as this court is aware, there is no way by which it may be determined which counsel is correct, but, at most, the alleged conversation goes no further than a general statement that there was no great hurry to get the transcript filed, and the fact that counsel was under “an unusual pressure of other work” is, of course, no legal excuse.