Opinion
July 2, 1924.
APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles F. Reddoch, Judge.
Action on insurance policy. Judgment for plaintiff. Appeal dismissed.
J.P. Pope, for Appellant, files no brief on motion.
Hawley Hawley for Respondent.
This appeal comes squarely under Rules 26, 27 and 28 of this court. ( H. B. Lake Co. v. Bales, 36 Idaho 142, 210 P. 396; Blumauer-Frank Drug Co. v. National Bank, 35 Idaho 436, 206 Pac. 807; Columbia Trust Co. v. Balding, 34 Idaho 579, 205 P. 264.)
Respondent moves to dismiss the appeal on the ground that the transcript was not filed in this court within 90 days after the perfection of the appeal, as required by Rule 26, and the time to file the transcript was not extended as provided by Rule 28. The facts are as stated in the motion. Appellant has not shown any reason or excuse for not obtaining an extension of time within which to file the transcript in this court. While a stipulation in regard to the contents of the transcript was entered into after the making of the motion to dismiss, it expressly saves all rights under that motion. Under Rules 26, 28 and 29, as interpreted and enforced consistently by a long line of decisions beginning with Iowa State Savings Bank v. Twomey, 31 Idaho 683, 175 P. 812, and ending with Intermountain Assn. of Credit Men v. Rexburg, Farmers Society of Equity, 38 Idaho 121, 220 P. 114, appellant's failure to apply for an extension of time within which to file his transcript constituted lack of diligence, and, being unexplained and unexcused, is ground for dismissing the appeal. The motion to dismiss is therefore granted, with costs to respondent.
Budge and William A. Lee, JJ., concur.
I dissent, for the reason stated in dissenting opinion in Utana Mining Corp. v. Salmon River Power Light Co., 37 Idaho 793, 218 P. 789.