Tripp v. Duane

Fox, J. — This is a motion to dismiss the appeal of .the defendant Ellis. The notice does not state upon what ground the motion will be made, but does state [150]that it will be made upon affidavit, a copy of which is served with the notice. The affidavit shows no ground for dismissal, except that of laches or -want of prosecution. It and the files and records of this court show that the appeal was taken prior to and the transcript filed in this court on June 24, 1884. It was filed in manuscript, and has never been printed, the appellant having failed to furnish the clerk with funds to pay for the printing. The case was on the calendar for argument several years ago, but was dropped from the calendar. It could not thereafter be restored, except upon notice, and it does not appear that any notice has ever been given to restore it to the calendar, and so get it in position to be heard. Both parties have been guilty of gross laches in the matter, and the court does not think that under all the circumstances it ought to allow one of the parties to take such advantage of the laches of the other as to cut her off from a hearing upon the merits, if she desires it, and will now prosecute the matter with due diligence. The present motion to dismiss will be denied. If the transcript is printed and served forty days or more before the commencement of the next January term of this court, the case will be placed on the calendar of that term for argument; otherwise respondent may then renew his motion to dismiss.

Beatty, C. J.„ and Paterson, J., concurred.