Considering the motion and the affidavit, I think that the motion to strike should be denied, for the reason that the affidavit shows that there was persistent effort on the part of the attorneys for the surety company to secure the transcript. While rule 33 requires that, in case of failure or neglect of the commissioner to transmit the record, the appellant may obtain an extension of time for filing the same by making application to the court or the judge, it does not *295appear that such extension was asked for. It is on this ground that objection is made to the affidavit.

The transcript of the record does not show the date of the filing of notice of appeal, nor, in fact, of any of the papers. The affidavit of Simon Hellenthal shows that the appeal and exceptions were filed on October 13, 1924, within 30 days of the date of the order denying the petition. According to the rule, the commissioner had until November 12th to send in the record. On November 5th, Simon Hellenthal, according to the affidavit, wrote the commissioner about the delay in forwarding the record, and received word that Thomas was absent and that a temporary appointee was filling his position. The attorney then prepared copies and sent them to the commissioner on ’December 4th for comparison and certification. They were not returned, however, until January 13, 1925.

While the attorneys for the appellant may have been neglect-' ful in not complying with the rule, in not obtaining an order for further time to present the record, nevertheless it appears that diligence was used in seeking to get the record before this court, and, had the attorney at any time, within the 90 days allowed by the rule, made application to this court, the court would undoubtedly have granted the extension of time upon his simple statement, showing that the probate judge was absent from the district and that he was unable to secure a proper transcript. Finally the transcript was filed within 90 days after November 12th, the time in which the probate judge was required to transmit the transcript and within the extension of time provided by the rule.

The motive of the rule relied on by the attorney for the guardian is to secure diligence in perfecting appeals from the probate court, because of the lack of any direct statutory regulation in that regard. The record, such as it is, was filed on January 13th, and the motion to dismiss was not filed within the 90 days allowed by the rule, but was filed on February 6th, long after the transcript was filed. It seems to me it would be a hardship on appellant to dismiss his appeal where, through no fault of his own, but entirely through the failure, absence, or neglect of the commissioner, the transcript was not filed within the time provided by the rule, especially after a showing of due diligence by the appellant to comply with the rule in filing the transcript, and that the same was filed before any step was *296taken to dismiss. The general rule seems to be that in such cases the appeal will not be dismissed. U. S. v. Adams, 6 Wall. (73 U. S.) 101, 18 L. Ed. 792; Burns v. Keas, 20 Iowa, 16; Mount v. Van Ness, 34 N. J. Eq. 527; Cheney v. Buckmaster, 29 Neb. 420, 45 N. W. 640.

The point is made that the original record was not forwarded. As I view it, the probate court is a court of record, and a transcript of the record, and not tire original record, should be forwarded as part of the appeal.

The transcript itself, as I said before, is defective, and should be amended to show the dates of the filing, in the probate court, of the various papers. On a showing in that regard, upon suggestion to the court, the court would, of necessity, order that the transcript be amended in that and other respects wherein it is defective. Such as it is, I deem the transcript sufficient in itself to deny the motion to dismiss the same.

Eet an order be prepared accordingly.