(dissenting)—I dissent from the opinion of the majority upon the motion to dismiss the appeal. The record shows that the notice of appeal was served July 13, 1904, that appellant’s opening brief was served September 20, 1904, and that the transcript was not certified, nor was the same filed with the clerk of the superior court, until after the expiration of ninety days, and after the motion to dismiss had been made by respondent. Section 2 of the act relative to appeals, Laws 1901, p. 29, provides that, within ninety days after an appeal shall have been taken, the clerk of the superior court shall prepare, certify, and file in his office a transcript, etc., said transcript to be so prepared, certified and filed at. or before the time when appellant shall serve and file his opening brief. A comparison of this section, and also section 3 of said act of 1901, with the former statute on the same subject, Bal. Code, §§ 6513 and 6514, will clearly show the intention of the legislature to have been to require appellant’s transcript to be certified and on file in the office of the clerk of the superior court at or before the time appellant filed his opening brief, in order that respondent might have ample opportunity, for the entire period of thirty days allowed him, to examine and use said transcript in the preparation of his answer brief, thus preserving respondent’s rights, so that he might not be compelled to take any steps whatever to aid the appellant in perfecting his appeal, by having a transcript prepared and certified after the filing of the opening brief, and during the period when the time for preparing respondent’s answer brief was running.
*576It is true; this court has passed upon this statute in the cases of Raymond v. Bales, 26 Wash. 494, 67 Pac. 269; Prescott v. Puget Sound Bridge etc. Co., 30 Wash. 158, 70 Pac. 252; Chapin v. Port Angeles, 31 Wash. 536, 72 Pac. 117; and Ellis v. Bardin, 36 Wash. 122, 78 Pac. 677. In Raymond v. Bales, supra, it distinctly appears that the transcript was filed within the ninety days. The same fact appears in Prescott v. Puget Sound Bridge etc. Co., while in Chapin v. Port Angeles, the record shows that an extension of time for filing appellant’s opening brief had been regularly obtained by order of the superior court, and the briefs and transcript were filed within such extended time. In Ellis v. Bardin, where a transcript was filed after the ninety days had expired, the appeal was dismissed, no sufficient excuse, for the delay having been shown. No sufficient excuse for delay has been shown in this case, and for that reason, if no other, this appeal should be dismissed on the authority of Ellis v. Bardin, supra. With due respect for the views of my associates, and also for the former holdings of this court, I am, nevertheless, of the opinion that the statute, in so far as it requires the transcript to be prepared, certified, and filed within ninety days, and also to be filed at or before the time of the filing of appellant’s opening brief, was not intended to be directory merely, but mandatory, for the benefit of the respondent. When appellant’s opening brief has been filed before, and the transcript after, the ninety days has expired, and such transcript has not been filed until after respondent has made his motion to dismiss, as in this action, the appeal should be dismissed.
The majority of the court having refused to dismiss the appeal, I concur upon the merits.