Dissenting. — I cannot concur in the decision of the majority to sustain the motion to dismiss the appeal on the ground that the transcript was not filed, within the ninety days fixed by Rule 26, no extension of time, as provided by Rule 28, having been applied for.
The large number of appeals dismissed by this court on the ground above stated leads me to the conclusion that we are making a mistake in strictly adhering to the foregoing rules. As was said by the supreme court of California in People v. Williams, 32 Cal. 280: “Rules of court should be *796framed in the furtherance of justice; but they may sometimes, if strictly adhered to, work the other way.” This court is not unaware of the fact that in many of the judicial districts of this state, either on account of the great volume of business in such districts or for other reasons, in nearly every appeal it is necessary to extend the time within which the transcript shall be filed. It is not difficult to comply with Rules 26 and 28, and it would seem that attorneys, in the event it is not possible to file the transcript on appeal within the ninety-day period, would take the precaution to secure an extension of time. However, the fact remains that a great many overlook this requirement; and in dismissing appeals on this account, we are not punishing those who are guilty of a lack of diligence; we are punishing their clients. Courts are established and maintained for the purpose of administering justice. Each and every case should be decided on its merits, and no case should be determined on a technicality where determination on the-merits is possible.
When a litigant desires to appeal to this court, certain things are by law required of him. Pie must serve upon the adverse party, and file in the district court, a notice of appeal. This notice must be accompanied or followed by an undertaking on appeal. In order to secure the clerk’s transcript, a praecipe, setting forth the papers to be contained in such transcript, must be filed with the clerk. In order to secure the reporter’s transcript, the litigant must procure an order therefor signed by the district judge, and he must serve the same on the reporter. At the time of requiring the services of these officers, their estimated fees, as well as a deposit to cover certain costs in this court, must be paid in advance. The clerk and the court reporter are public officers. It is presumed that they will perform their duties and that they will prepare their transcripts at the earliest possible day. An attorney who is prosecuting an appeal, after complying with the foregoing requirements, should not be expected to continually importune these public officers to do their duty, and keep a watchful eye on them to determine whether or not they will have their transcripts prepared so *797that they may be served, settled and lodged in this court within the time provided by the rules. It would seem that a rule of this court fixing the time within which the transcript on appeal shall be filed in this court, after the same has been furnished the attorney for appellant, would result in the determination of more eases on their merits, and fewer would be dismissed on a pure technicality. I favor the adoption of such a rule.
It is the duty of the members of this court, as well as the attorneys who practice before it, to conform to its rules. I do not intend to encumber the reports with dissenting opinions on this subject, and I have set forth my views here in the hope that they may have some weight with my brethren, and result in a change of the rules of this court.