ON PETITION POR REHEARING.
WM. E. LEE, J.— Respondent strenuously insists that a rehearing on his motion be granted, and that he be permitted to amend the record upon which the motion was determined by adding an affidavit of one of the attorneys for respondent. The record before us, in considering the motion, included a number of affidavits, and, we presumed and had every reason to presume, was a full and complete record. A motion to dismiss an appeal is technical in character. The matter having been determined upon the record, this court will not permit the record to be amended on a motion for a rehearing.
Counsel contend that the original opinion is contrary to the rule announced in Brockman v. Hall, ante, p. 564, 218 Pac. 188. This position is not well taken. In that case, we were discussing the failure to file a notice of motion for a new trial within the statutory time, and we held that the statutory requirement that a notice of motion for a new trial must be served and filed within ten days after the verdict of the jury was jurisdictional, and could not be waived by stipulating additional time for filing briefs. The rule of this court (Rule 26 [211 Pac. xx]) that a transcript on appeal must be filed in this court within ninety days after the appeal is perfected is not jurisdictional, and has been so held by this court. (Stout v. Cunningham, 29 Ida. 809, 162 Pac. 928.) The original opinion is not in conflict with the rule announced in Brockman v. Hall, supra.
Rehearing denied.
McCarthy, Dunn and William A. Lee, JJ., concur.