Opinion
No. 5403.
July 18, 1929.
APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Miles S. Johnson, Judge.
Motion to dismiss appeal. Granted.
Fred J. Babcock and Cox Martin, for Respondent.
Where the transcript on appeal shows that the reporter's transcript was not settled until after the hearing on the motion for a new trial, such reporter's transcript will be stricken from the transcript on appeal on motion. ( Buckle v. McConaghy, 11 Idaho 533, 83 P. 525; Wood v. Tanner, 15 Idaho 689, 99 P. 123, 1053.)
The transcript or record on appeal from an order denying a motion for a new trial, or other contested motion, must contain a certificate signed by the judge, clerk or attorneys that the papers therein contained were submitted to the judge and used on the hearing of the motion, and constitute all of the record, papers and files used or considered by the judge on such motion. If the transcript does not contain the required certificate, or the one contained therein is not in substantial conformity to the rule, the order disposing of the motion cannot be considered, and the appeal therefrom will be dismissed. (C. S., secs. 6892, 7165; Supreme Court Rules 21, 24 (45 Ida.); Robinson v. School Dist. No. 61, 36 Idaho 133, 209 Pac. 726; Muncey v. Security Ins. Co., 42 Idaho 782, 247 Pac. 785; McCarty v. Warnkin, 35 Idaho 614, 207 P. 1075; Hardy v. Butler, 39 Idaho 99, 226 P. 669; Douglas v. Kenney, 40 Idaho 412, 233 P. 874.)
Tannahill Leeper, and Jas. F. Ailshie, for Appellants.
A certificate was signed and filed in the court below, which was not sent up by the clerk. We have asked for a diminution of the record to supply this certificate. This practice has always been approved. ( Smith v. Inter-Mountain Auto Co., 25 Idaho 212, 136 P. 1125; Witt v. Beals, 31 Idaho 84, 169 P. 182; Steensland v. Hess, 25 Idaho 181, 136 P. 1124; Smith v. Benson, 32 Idaho 99, 178 P. 480; Fleming v. Benson, 32 Idaho 103, 178 P. 482; Bumpas v. Moore, 31 Idaho 671, 175 P. 339.)
If paper is missing from record that is not ground to dismiss or strike, but is proper ground for diminution of record. ( Zienke v. Northern Pacific Co., 7 Idaho 746, 65 P. 431; Coey v. Cleghorn, 10 Idaho 162, 77 P. 331; Witt v. Beals, supra.)
If record itself is adequate, the appeal will not be dismissed. In this case we have certified up the entire record of the court below from which it can be ascertained that this court had before it all papers, records and files used by the court below, and that these, as set forth in the certificate, are all the records and files except formal papers which could not affect the merits of the case. ( Gropp v. Huyette, 35 Idaho 683, 208 P. 848; Strand v. Crooked River Min. Co., 23 Idaho 577, 131 P. 5.) Substantial compliance is sufficient. ( Feenaughty Machinery Co. v. Turner, 44 Idaho 363, 257 P. 38; Muncey v. Security Ins. Co., 42 Idaho 782, 247 P. 785.)
Appeal from an order denying motion for a new trial. Plaintiff (respondent) had judgment November 2, 1927. Defendants filed notice of intention to move for new trial November 12, 1927. Although the record filed April 20, 1929, does not so show, time for filing affidavits was extended to January 11, 1928, when appellants' affidavits were filed. Respondent filed one affidavit June 6, 1928, and the motion came on for hearing June 11, 1928, but was continued "for further hearing." The motion was heard, submitted and denied on January 17, 1929. Reporter's transcript was certified by reporter February 23, 1929 (application and order therefor dated and filed March 2, 1929). Notice of appeal from the order denying a new trial filed March 2, 1929; undertaking filed on March 6, 1929. June 8, 1929, appellants filed motion in re diminution of record in this court, to have certified up orders extending time to file affidavits and the following papers filed after the perfection of the appeal herein, to wit: Certificate of trial judge as to papers used on hearing of motion for a new trial, dated April 9, 1929, stipulation of counsel and order settling reporter's transcript, dated and filed April 9, 1929, and affidavit of E.W. Lutz, in opposition to motion, filed at appellants' request in court below June 8, 1929. In connection with the motion are copies of said papers certified by the clerk on June 11, 1929, lodged in this court June 12, 1929. The motion is granted in so far as it refers to the orders extending time and the certificate of the trial judge dated April 9, 1929, and denied as to the other papers enumerated.
Respondent moves to strike the completed transcript, reporter's transcript, and to dismiss the appeal. The reporter's transcript is not properly identified as the one used by the trial judge at the hearing of the motion for a new trial, nor is it settled by the trial judge. The motion to strike the same is granted. No proper certificate of the judge who heard the motion, specifying the records and papers used on the hearing, as required by rule 21 of this court, is found in the record. The statement in the order overruling the motion to the effect that he used certain records and affidavits, and the certificate dated April 9, 1929, do not affirmatively show that the papers enumerated were all the papers used by the trial judge in considering the motion. The completed transcript will therefore be stricken.
Having failed to produce a sufficient certificate of the trial judge as to what records, papers and files were used by him on motion for a new trial, as required by rule 21 (formerly rule 24), the appeal must be dismissed. ( Glenn v. Aultman Taylor Machinery Co., 30 Idaho 719, 167 P. 1163; Spencer v. John, 33 Idaho 717, 197 P. 827; Douglas v. Kenney, 40 Idaho 412, 233 P. 874.)
(December 5, 1929.) ON REHEARING.
This motion was first heard at Lewiston at the June, 1929, term. On motion of appellants, a rehearing was had at Coeur d'Alene at the November, 1929, term. Upon further consideration, we still adhere to the former holding as above set forth.
Appeal dismissed. Costs to respondent.
Budge, C.J., and Givens and T. Bailey Lee, JJ., concur.
Wm. E. Lee, J., dissents.