Holz v. Fishel

Disskntino- Opinion. Fenner, J. Holz having taken a suspensive appeal from the judgments iu those cases returnable to this Court, appeared here on the last day allowed for return, after this Court had adjourned, and filed an affidavit setting forth the refusal of the clerk of the court to complete the record of the appeal or to give him a certificate showiug its non-completion, and with said affidavit filed the following motion -~ “ On nrqtion of F. Michinard, of counsel for Holz, etc., and the accompanying affidavit considered, it is ordered that this motion and affidavit be filed in lieu of the ordinary record, and that said appellant do, without delay, apply for the proper writs to obtain the record required by law.” This motion was not acted on, owing- to the court’s not being iu session, but it is not thereby deprived of any effect to which it is entitled so far as timeliness of action is concerned. At the same time he filed an application here for wiits of mandamus, certiorari and prohibition against the clerk.of the lower- court, designed to perfect his appeal. This petition was handed to the Chief Justice, but no order was-made thereon and it was withdrawn. On the following day IIolz filed in this Court the certificate and affidavit of the clerk, and applied for and obtained an order extending the return day for thirty days. Without the previous proceedings above noted, the last named application and order would have come too late and would have had no-effect. But I am compelled to regard the first motion and affidavit timely filed, as substantially an application for an extension until, by proper writs to be invoked “ without delay,” he could obtain the record. They could have had no other possible motive or purpose, and I consider them a substantial compliance with our rule. In such matters we should not stick in the letter, but seek the spirit-, and meaning of the application. *299 Our rule is in the following terms : '‘Motions for extension of time to file transcripts must be supported by affidavit of the clerk of the lower court, or of the counsel, or of the mover. Such affidavit must state specifically the causes which prevented the completion of the transcript within the legal delay.-’ Now, here an affidavit was filed stating very specifically the causes of the non-filing, and it was accompanied by a motion, the meaning and purpose of which could be no other than to ask an extension of time. We have frequently held that the timely filing of such a motion, though made when the court is not in session, and, therefore, not acted on, suffices to protect the rights of the party. I think the appellant stood under such protection, and that our regular order of the following day was lawful and valid. I, therefore, dissent from the opinion and decree herein.