Hagar v. Mead

By the Court, Sanderson, C. J. The appeal in this case was dismissed during the first week of the term upon motion of the respondent, made pursuant to the third and fourth rules of this Court. Subsequently, and before the adjournment of the term, the appellant, upon notice to the respondent, moved to vacate the order of dismissal and to restore the appeal. Upon this motion both parties presented affidavits, from which we find the following facts: On the 26th of January, 1864, the statement on appeal as settled by the Judge was filed in the Clerk’s office. The appeal was perfected by service of notice and filing undertaking on the first day of February following. Within a short time thereafter the attorney for appellant requested the Clerk to make up the transcript for this Court, but, on being asked when he wanted it, he replied, “You can make it up now, or next Fall, or some other time.” The title papers, etc., of plaintiff and defendant, used in evidence on the trial, were made a part of the statement, and the transcript could not be made out by the Clerk without the original or agreed copies. Neither has ever been furnished by the appellant.

The only reason alleged by appellant for not furnishing the documents in question is that they were and still are on file in the District Courts of Yuba or Sacramento County, or in this Court, in other suits there pending. No reason is given why they could not have been withdrawn by stipulation or otherwise, or agreed copies obtained for the purpose of making out [600]the transcript; on the contrary, it affirmatively appears that no effort was made by appellant to obtain them in any manner, and there is no pretense that an effort to that end would have proved abortive; on the contrary, it is clear that they could have been readily obtained; for it appears that, about the middle of May last, the respondent by stipulation withdrew his title papers from said Courts, and has had them in his possession ever since, with the full knowledge of appellant’s attorney and by virtue of his express stipulation ; and it further appears that the respondent has been at all times ready and willing to furnish the appellant with his title papers, but has never been called upon by appellant for that purpose.

The second and third rules of this Court are to the following effect: “ In all cases where an appeal has been perfected and the statement filed (if there be one) thirty days before the commencement of the next succeeding term, the transcript of the record shall be filed on or before the first day of such term.”