I concur in the order denying the motions to dismiss the appeals in each of the foregoing cases, but not for the reasons stated in the opinion.
It has been uniformly held that a failure to file the transcript on appeal within the time fixed by Rule 26, or some extension of the time as provided for by Rule 28, negatives diligence. (Strand v. Crooked River Min. Co., 23 Idaho 577,131 P. 5; First Nat. Bk. of American Falls v. Shaw, 24 Idaho 134,132 P. 802; Coon v. Sommercamp, 26 Idaho 776, 146 P. 728;Stout v. Cunningham, 29 Idaho 809, 162 P. 928; Boise PayetteLumber Co. v. McCarthy, 31 Idaho 305, *Page 484 170 P. 920; Iowa State Sav. Bank v. Twomey, 31 Idaho 683,175 P. 812; Blumauer-Frank Drug Co. v. First Nat. Bk., 35 Idaho 436,206 P. 807; H. B. Lake Co. v. Bates, 36 Idaho 142,210 P. 396; Gemmell v. Collins, 36 Idaho 416, 210 P. 738; Parkinsonv. Winzler, 36 Idaho 449, 210 P. 738; Gates v. ToddCommercial Co., 36 Idaho 784, 213 P. 1017; California Gulch P.Min. Co. v. Patrick, 37 Idaho 661, 218 P. 378; National ParkLbr. Co. v. Nelson, 37 Idaho 758, 218 P. 367; Utana. M. Corp.v. Salmon, River P. L. Co., 37 Idaho 793, 218 P. 789.)
The majority opinion assigns as a reason for not dismissing these appeals that respondent has not suffered any injury by the delay and that it does not appear that appellants are responsible for the delay in the preparation of the transcripts required to complete the record on appeal. This gives to Rule 26 a construction directly contrary to that given it in the foregoing cases and many others that have been decided under this rule.
C. S., sec. 7166, requires the clerk of the court below to transmit the record on appeal to the clerk of this court "within such time as is now or shall be designated by rule of the supreme court." Therefore, Rule 26, when construed in connection with this statute, has the force and effect of a legislative enactment. (California Gulch P. Min. Co. v.Patrick, supra.) To now hold that the rule does not apply unless respondent has been injured or unless appellants are responsible for the delay in filing the transcripts, nullifies the rule.
It is within the province of this court to repeal or modify its rules in any manner that may be necessary or expedient in the interest of justice, but it is not within the proper province of any court to legislate a rule or statute out of existence by judicial construction.
It is well known that in a number of the judicial districts of the state official court reporters are unable to prepare their transcripts of the evidence within the time allowed by this rule, and for this reason repeated extensions of time are frequently necessary in order to enable appellant to *Page 485 obtain a transcript and file a completed record on appeal in this court. These extensions of time are granted, as of course, under Rule 28 by any member of this court, provided the application be made before the time has expired, or a sufficient justification is shown for a failure to have the time extended, but because counsel for appellants frequently neglect to apply for this extension, appeals are dismissed under the rule. I think that in most cases such dismissals visit upon the appellant a penalty for the negligence of his counsel that is often out of proportion to the offense, and that the rule should be repealed or modified in such manner as to penalize the attorney and still permit the appellant to be heard upon the merits of his case, where he promptly files the record after his attention is called to his failure.
I do not concur in the reasons given for the refusal to dismiss the appeal in Booth v. Drainage District, post, p. 549,235 P. 895, for the reason that I do not think there is any showing of diligence on the part of appellant. I concur in the refusal to dismiss this appeal because I believe the rule should be either repealed or modified, for the reasons above stated.
No uniform standard of diligence can be fixed, and where a motion to dismiss an appeal is denied in some cases and allowed in others, it leaves the appellate procedure too indefinite and uncertain. Parties may never know when their appeals are to be dismissed for a failure to get their records into the appellate court within the time allowed by the rule, or excused for such delay on the ground that they show proper diligence.
The rules of procedure in an appellate court should not be changed by judicial construction with every change in the personnel of the court. If a rule, for good and sufficient reason, is found to be objectionable it should be modified or repealed, but a court should never resort to the expediency of giving it a construction contrary to its plain intent and meaning in order to avoid its operation, but should meet the question by a change in the rule. *Page 486