(dissenting). I cannot concur in-the majority opinion, tn my judgment the filing of the notice of the appeal and the undertaking gave the district court jurisdiction of this case, and under our statute it was no more incumbent upon the defendant to see that the *245justice of tbe peace performed bis duty and transmitted tbe record tban it was upon tbe plaintiff bimself. Tbe only particular in wbicb tbis case differs from tbe case of Haessly v. Thate, 16 N. D. 403, 114 N. W. 311, is tbat to be found in tbe fact tbat tbe defendant was absent at tbe time tbe case was called for trial. This, however, does not alter tbe rule. Tbe defendant bad perfected bis appeal in so far as be was concerned, and tbe justice alone was negligent. Defendant did not fail to prosecute bis appeal, and tbe appeal should not have been dismissed for tbis reason. He bad done bis part in removing or appealing the case for trial de novo to tbe district court, and on that trial de novo it was incumbent upon tbe plaintiff to proceed and to prove bis case. Under our statute, § 8507, Eev. Codes 1905, either party may obtain an order for tbe transmission of tbe record, and since plaintiff did not ask for the order, there is no reason why it should not have been allowed to tbe defendant. Tbe case is, as we before intimated, practically settled by tbe decision in Haessly v. Tbate, supra. In addition thereto tbe following statutes and decisions are more or less pertinent: Section 7012, 8509, 8500, 8507 and 7326, Rev. Codes 1905; Myers v. Mitchell, 1 S. D. 249, 46 N. W. 245; Keehl v. Schaller, 1 S. D. 290, 46 N. W. 934; Eldridge v. Knight, 11 N. D. 552, 93 N. W. 860; Rabin v. Pierce, 10 Cal. App. 734, 103 Pac. 771; Alexander v. Municipal Ct. 2 Cal. (Unrep.) 390, 4 Pac. 961; Chenowith v. Keenan, 61 W. Va. 108, 55 S. E. 991; Morgan v. Zimmer, 120 App. Div. 672, 105 N. Y. Supp. 914; Clark v. Harris, — Tex. Civ. App. —, 129 S. W. 202.
I am authorized to state tbat Pise, J., concurs in tbis dissent.