Norager v. Norwald

dissented as follows: —

The notice of appeal herein was given June 23, 1885,, but the transcript was not brought up by the appellant as required by statute, nor was there any showing made,, or attempted to be made, for the failure thus to file the transcript in the- cause. Under these circumstances, the appellee, on the first day of this term, filed here a copy of the judgment and notice of appeal, and asked that the judgment be affirmed; and it is conceded that his notice must be granted, unless same reason to the contrary is properly made to appear to the court; but my brothers-are of the opinion that the pendency of an original proceeding in this court for a mandate to compel the judge-of the court below to settle a statement of facts in the case is in itself a sufficient reason for denying appellee's said motion, but with this conclusion I am unable to-agree, —

1. Because I do not think such proceeding has any such connection with this cause as to entitle the court to at all consider the same in deciding any question herein.

*2492. Because if it is considered as being on file in this case, it is not in itself of any force as against appellee’s motion, as it is nowhere suggested by the appellant that, if the writ of mandate issues, and the judge settles the statement, as therein required, it is his intention thereafter to bring up a transcript of the cause for investigation, and for aught that this court can know, such mandamus proceedings are not prosecuted for the purpose of this case at all, but simply with the object of establishing a correct practice for the future.

In my opinion, it is the duty of the appellant in any case to file a transcript in this court within the time provided by law, or in case any reason exists why he cannot do so, to file a showing by affidavit or otherwise of such reason, and a motion for leave to be allowed to file such transcript, when the obstacle preventing the present filing is removed; and that the appellee, in the absence of such transcript or showing and motion, has a right to avail himself of the provisions of section 461 of the Code, and have the judgment affirmed; and I am of the opinion, that appellant cannot as a matter of right appear and make any objection thereto, as his failure to file the transcript is in the nature of a default, which the appellee by the filing of his papers has made effective; and before the appellant can further appear in the case he must file his motion and showing, and obtain an order relieving him from such default. Moreover, I am inclined to the opinion that this court should not relieve an appellant from the consequences of a failure to file a complete transcript, unless it appeared that he had brought up such parts thereof as he reasonably could; and I think the only safe course for an appellant would be to timely file such part of the transcript as he is able to procure, and then if for any reason he cannot make it complete, to show such reason to this court and ask for time, and if necessary the aid of the court.

In a case like the present, the appellee not being advised *250in any way of the intention of appellant, further to prosecute his appeal, has a right to assume that he is entitled to the benefit of said section 461, and after he has gone to the expense of having sent up a copy of the judgment and notice of appeal, and of coming ‘here to avail himself of the benefits of said section, he should not be prevented from so doing by proceedings of which he has no notice, and to which he is in no sense a party, and which are not even on file in the case. It follows that in my opinion the motion should be granted.

delivered the opinion of the court.

An appellant in an action at law who has saved exceptions which can he preserved by a statement of facts ■only, or by a bill of exceptions, and who has done all that the law requires to entitle him to a settlement of .such facts by the judge of the lower court, ought not to he considered in fault, if, pending action on his proposed statement, he fails to cause an incomplete transcript in this court. Actus curise neminem gravabit. In such a case, it being shown to this court, on application •for a writ of mandamus, that the judge has failed or refused, on insufficient grounds, to settle the statement of facts, and. an alternative writ having issued, the appellee •ought not, pending the determination of the court in the mandamus proceeding, to have an affirmance of his judgment under section 461 of the Code. The court would not have awarded the alternative writ without a showing establishing at least that the failure to complete the record in the court below, so that a proper transcript could be filed here, was owing to circumstances over which the appellant had no control. The showing on the motion for mandamus may properly he looked to and .considered on the application to affirm.

The writ of mandamus goes from this court only in aid *248of its appellate jurisdiction, and while not properly a step in the main cause before the latter has reached this court, it yet bears sufficient relation to it to permit the-showing to be considered therein when the latter has reached us by the intervention of the appellee. It may be that the appellant has been guilty of laches in failing to sooner prosecute the mandamus suit. If so, he will not succeed in that suit. But certainly if he deserves to succeed therein, the appellee is not entitled at this time-to an affirmance of his judgment; and whether he deserves to succeed therein is to be determined in that suit,, and not on this motion to affirm.

We think the motion to affirm should stand over without action for the present.

Langford, J., concurred.