¶1On Motion to Dismiss Appeal.
¶2The opinion of the court was delivered by
¶3The ground of the motion is, that the transcript of appeal was not filed within ten days after the order of appeal was. granted; and under the law, it was out of time when filed.
¶4*663That upon the 4th of June, 1898, the appellant filed a motion for-the extension of the return day of the appeal, and obtained an order-extending same; and that said order was unavailing because the time within which the appeal could have been filed, and within which the return day could have been legally extended, had already elapsed.
¶5The record discloses, that the order of appeal was granted on the 20th of May, 1898, and the transcript was only filed on the seventh-day of June following.
¶6The clerk of the District Oourt prepared and caused to be filed in this court, a certificate in which the fact is stated that “ he was-delayed in the preparation of the transcript by a search necessitated by the absence from the record of the letter filed and made part and portion of a bill of exceptions, reserved by defendant; and by a stress of other business, so he could not prepare the transcript until after the lapse of the legal delays for its filing in the Supreme Court.”
¶7This certificate has not been traversed, and it clearly shows that it was not the fault of the appellant that the appeal was not filed indue time; but that of the clerk, if of any one.
¶8But the statement of the clerk is that for good and sufficient-reasons he was unable to prepare the transcript in time.
¶9True it is that the appellant might have filed his motion for an extension of time within the ten days allowed for bringing up the appeal, but owing to the particular cause assigned by the clerk, it. is not apparent that the defendant or his counsel was aware that the transcript would not be ready in time.
¶10State vs. Bevell, 47 An. 48, is in point.
¶11The motion to dismiss is denied.