Rumfelt v. Trinity River Canal & Hydraulic Mining Co.

McFarland, — This cause is before us upon a motion of respondent to dismiss the appeal because no transcript on appeal was filed and served within the proper time.

There seems to have been great delay from the start in perfecting the appeal and taking steps to prepare and print the transcript. Judgment was entered September 29, 1888; the bill of exceptions was settled and certified July 20, 1888; and the notice of appeal was not filed until September 25,1889. On November 4,1889, for the purpose of getting an order of this court extending the time for filing and serving the transcript, the attorney for appellant made an affidavit, in which he stated that “the transcript on appeal in said cause has not yet been printed, owing to unavoidable delay in getting a capable person to prepare the manuscript of the record of said cause; that said manuscript of -the record of said cause is now prepared and ready for printing; that it will be necessary for appellant to have further time in which to prepare and serve its transcript on appeal.” Upon the [651]presentation of said affidavit, four justices of the court, on said November 4th, made the following order: “ Upon application of counsel for appellant in the above-entitled action, and good cause appearing, it is hereby ordered that said appellant may have twenty days further time from this date within which to serve and file its transcript on appeal in said action.” On November 23, 1883, appellant, instead of filing a printed transcript, and serving it on respondent, as was clearly contemplated by the order, merely delivered to the clerk of this court one manuscript copy of the transcript, and on November 25th paid to the clerk the amount of money necessary to pay for printing it. (The 24th of November, the last of the twenty days, fell on Sunday.) And appellant now contends that because it had the manuscript transcript on file when the motion to dismiss was made, it is protected against the motion by rules 10 and 3 of this court.

Rule 10 is no doubt somewhat incomplete; but we think that the general understanding has been, that, read in connection with other rules on the subject, the proper construction is, that when an appellant chooses to have his transcript printed by the clerk he must furnish it to the clerk soon enough for the latter to have it printed and served within the forty days. But however that may be (and we do not decide the point here), the appellant in the case at bar did not bring himself within rule 10 or any other rule. It did not file or serve either a printed or a manuscript transcript within forty days. It depends entirely upon the grace given it in the order extending the time. But there was no compliance with that order. It gave twenty days in which “to serve and file” the transcript,—which was not done. Moreover, it was made upon an application and affidavit which showed that the manuscript was ready, but that additional time was necessary in order to have it printed; and it was as much an order giving additional time to