The above entitled cause was tried to the court and jury, verdict was in favor of respondents, judgment was entered thereon. Appellant, thereafter, gave notice of his intention to move for a new trial, and duly thereafter moved for a new trial, which was denied. Defendant prosecutes this *Page 422 appeal both from the judgment and the order denying the motion for a new trial. Appellant failed to obtain a certificate, under rule 23, from the trial judge as to the papers, records and files used and considered by the judge at the hearing of the motion for a new trial; but later, and prior to the hearing of said cause on appeal in this court, obtained the certificate.
There is no showing of prejudice resulting to respondent by the delay, or otherwise, due to appellant's failure to obtain the certificate, as required by rule 23. It is true that there was delay and negligence on the part of appellant by reason of his failure to comply with the rule, and such practice is not to be commended; however, the rule would seem to be well established, that this court will not dismiss an appeal in absence of prejudice to respondent due to the failure on the part of appellant to obtain the certificate, as required, if the same be supplied prior to the hearing of the cause.
In Smith v. Inter-Mountain Auto Co., 25 Idaho 212, the court used the following language:
"Where the transcript on appeal does not contain the proper certificate showing what papers the trial court or judge used on the hearing of the matter presented to him, and a motion is made to dismiss the appeal on that ground, and counsel for appellant asks for permission to do so, and thereafter furnished the proper certificate, the appeal will not be dismissed on that ground." (To the same effect see Hoover v.Shott, 182 P. 883, 66 Colo. 456.) And to the same effect seeGloublitz v. Smeed Brothers, 52 Idaho 725, where the court uses the following language:
"Such certificate is not jurisdictional and the failure to include it in the transcript may be corrected before final submission of the case on appeal."
In the case of Steenland v. Hess, 25 Idaho 181, the court held:
"The practice of allowing an amended certificate to a transcript has been established by several cases in this court." (See Barrow v. B. R. Lewis Lumber Co., 14 Idaho 698;Steve v. Bonners Ferry Lumber Co., 13 Idaho 393.)
To refuse to grant the application of appellant to supply the certificate for the reason that the transcript on *Page 423 appeal did not contain the certificate required by rule 23, but which is supplied prior to the submission of the cause would work a serious hardship upon litigants unfamiliar with the practice or rules of procedure of the courts, and defeat justice.
I concur in the opinion of Mr. Justice Holden, except that portion thereof, holding that the application to supply a certificate under rule 23 should be denied.