Wood v. Peterson Farms Co.

WASTE, C. J.

Respondent separately moves to dismiss the appeal in each of the above-entitled causes. The cause numbered L. A. No. 13021 was instituted by respondent to foreclose a real estate mortgage. All of the defendants but the appellant Peters defaulted. Judgment was entered for respondent on December 29, 1930. On January 2, 1931, the appellant filed her 'notice of appeal and her request for a transcript. The clerk’s transcript was certified by that officer on January 31, 1931. Subsequently, the respondent moved to terminate the proceedings for a record,

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which motion was granted by the trial court on March 16, 1931. On the same day the reporter’s transcript, certified by him, was filed in the court below, but the trial judge refused and still refuses to authenticate it. Under rule I of this court, the appellant was required to file her record here not later than forty days after the termination of the proceedings in the court below, or on April 25, 1931. It appears from the various papers filed in connection with the motion to dismiss, and from the notations of our clerk, that the clerk’s transcript, duly certified, was in fact deposited in this court for filing prior to the expiration of the forty-day period and on or about April 2, 1931, but was withheld from actual filing until the required fee should be paid. The fee was not paid nor the transcript filed until June 1, 1931, which was after the expiration of the forty-day period and subsequent to the filing of respondent’s notice of motion to dismiss for failure to file transcript within time. It is therefore apparent that the appellant was technically in default in the filing of the clerk’s transcript and, in the absence of a satisfactory showing in explanation and mitigation of such default, respondent’s motion to dismiss would have to be granted. But, in opposition to the motion, appellant has presented affidavits from which it appears that ten days prior to the expiration of the forty-day period within which the transcript should have been filed, her counsel was stricken with an illness which completely incapacitated him, and precluded him from carrying on any business until June 1, 1931, at which time he promptly attended to the payment of the filing fee and had the transcript filed. It also appears that prior to the expiration of the forty-day period, and prior to his illness, counsel had communicated with appellant by letter, requesting that she call on him and pay the fee for the filing of the transcript; that upon calling at counsel’s office with the necessary fee, affiant was informed of his illness and inability to carry on any business; and that affiant was thereafter unable to see counsel until shortly prior to June 1, 1931, when she paid him the filing fee.