*89The opinion of the court was delivered by
Dunbar, J.Respondents move to dismiss this appeal, and affirm the judgment appealed from, for the reason that more than sixty days have elapsed since the giving of the notice of appeal, and that no transcript has been filed with the clerk of the supreme court. It is true that the transcript was not filed within the statutory time; but it also appears from the affidavits in the case, and from the admission of respondents, that the delay in the first instance was caused by the taking from the clerk’s office below by the attorney for the respondents of the original petition in the case, and the misplacing of said petition by said attorney, so that it could not be found until the time for filing the transcript had nearly expired. We are satisfied from the showing made that after the finding of the said petition the appellant acted with due diligence in preparing the transcript, and that he ought not to be held responsible for a delay which was initiated by the carelessness of respondents.
The motion is, therefore, denied.
Anders, C. J., and Scott, Stiles and Hoyt, JJ., concur.