Opinion
No. 45956.
June 16, 1942.
APPEAL AND ERROR: Motion to dismiss — section 12847, C., '39. Rule reaffirmed that, under section 12847, C., '39, the abstract must be filed within 120 days after the appeal is perfected or on motion the appeal will be dismissed.
Appeal from Cedar District Court. — C.J. HAAS, Judge.
Motion to dismiss appeal or affirm because of failure to file abstract within the time required by section 12847, Code, 1939. — Appeal dismissed.
Fisher Fisher, for appellant.
C.R. Barnes and M.C. Hamiel, for appellee.
This is the second appeal of this case. See Miller v. Economy Hog Cattle Powder Co., 228 Iowa 626, 293 N.W. 4. The trial from which plaintiff has taken this appeal resulted in a verdict for defendant. The appeal was perfected on August 11, 1941. Appellant's abstract was filed in this court on February 9, 1942. Appellee filed its motion under section 12848, Code, 1939, to dismiss or affirm because the abstract was not filed within 120 days after the appeal was perfected, as required by section 12847. Appellant has filed no resistance to the motion, which was ordered submitted with the case. Appellee's motion must be sustained.
Code section 12847, requiring the abstract to be filed within 120 days, is mandatory and must be complied with in order to invoke the jurisdiction of this court. While we have authority to waive our own rules under proper circumstances, we are not authorized to waive a statutory requirement such as this. No extension of time within which to file the abstract was asked for or granted. The abstract was not filed until about six months after the appeal was perfected. Some of the cases which support our conclusion are: Herrold v. Herrold, 226 Iowa 805, 808, 285 N.W. 274; Waterloo Sav. Bk. v. Town of Redfield, 213 Iowa 871, 236 N.W. 61; Coggon St. Bk. v. Woods, 212 Iowa 1388, 238 N.W. 448; Farmers St. Sav. Bk. v. Miles, 206 Iowa 766, 768, 221 N.W. 449; Botna Valley St. Bk. v. Cary, 205 Iowa 913, 218 N.W. 926.
We may add that, for reasons which need not be mentioned, we have carefully considered the merits of the appeal. Five of the six assigned errors complain of the instructions to the jury. We find no reversible error in the instructions in any of the respects charged. The remaining assignment of error challenges the sufficiency of the evidence to sustain the verdict. A review of the evidence discloses that the verdict has sufficient support.
Appellee's motion to dismiss appeal is sustained. — Appeal dismissed.
All JUSTICES concur.