de Coito v. de Coito

¶1The decree appealed from was entered Nay 28,1912, and on the following day the appellant filed a notice of appeal, paid the costs required by law and (otherwise perfected the appeal. On June 3 the trial judge made an order directing'the stenographer to prepare and file a' transcript of the testimony. Owing to preparation of transcripts under earlier orders of the trial judge and to press of other duties in court the stenographer has been unable to prepare the transcript in the case at bar. Prom time to time since the issuance of the order of June 3 appellant’s attorney has called upon the reporter to ascertain whether the manuscript had been prepared and on or about July 15 requested opposing counsel to enter into a stipulation for an extension by this court of the time for the filing of the necessary papers on appeal, a negative reply to the request being received only a day or two prior to the filing of the motion now under consideration. It is clear that all of the requirements of the statute for the perfecting of the appeal were complied with within the time required by law and that appellant has done all in her power to procure at the earliest possible date a transcript of the testimony. That the transcript is necessary for the determination of the issues raised on the appeal is undisputed. Under these circumstances a motion to dismiss the appeal for failure of prosecution could not be granted. The provision of Buie 2 of this court is that an appeal “may” in a proper case be dismissed for want of prosecution, — not that it shall be dismissed in all cases of failure to file the record within twenty days after the perfecting of the appeal. The better practice would have been to have presented the application for the extension of time before the expiration of the twenty days but the extension may nevertheless be granted subsequent to that period. The motion is granted.