(dissenting). Back in the year 1964, the defendant was found guilty of operating a motor vehicle while under the influence of intoxicating beverages. A notice of appeal to the circuit court was promptly filed, and, since then, the appeal has been allowed to slumber, unperfected, unprocessed and undisturbed. The Rip Van Winkle sleep came to light when the county auditor wondered about the $200 appearance money posted by the defendant with the county and left there, forgotten along with the appeal. The present city attorney of Mequon moved for dismissal of the appeal for failure to file a transcript as required by sec. 299.30 (3), Stats. Instead the circuit court ordered a new trial.
The majority holds that the circuit court could dismiss the appeal, perhaps under sec. 299.30 (6), Stats., certainly under sec. 269.25 (dismissal for delay). However, dismissal for failure to file a transcript, the majority holds, could not be ordered because, “The absence of a transcript does not require a dismissal of the appeal inasmuch as certain issues may still be passed upon by the *799reviewing court.” This establishes an analogy with appeals to this court, where if an appellant fails to procure a transcript, it has been held that all that may be considered. is whether the judgment is supported by the pleadings, findings or verdict. See: Stelloh v. Liban (1963), 21 Wis. 2d 119, 124 N. W. 2d 101; Schimke v. Milwaukee & Suburban Transport Corp. (1967), 34 Wis. 2d 317, 149 N. W. 2d 659; Fond du Lac v. Hernandez (1969), 42 Wis. 2d 473, 167 N. W. 2d 408. The approach to the city’s motion to dismiss stresses its form, not its substance. The city’s motion to dismiss essentially was a motion to dismiss for defendant’s delay in perfecting, processing and proceeding with his appeal under sec. 269.25, Stats. However, if the reasoning of the majority is accepted, it follows that the trial court clearly should have proceeded to hear the appeal on pleadings, findings and judgment, exactly as this court would feel obliged to do on an appeal brought here without a transcript.
The majority correctly brushes aside the attempt of the defendant to place the blame for failure to provide a transcript upon the court reporter’s shoulders, noting that the loss of notes involved in a moving of courthouse records did not occur until 1967 and “. . . cannot be used to excuse the original failure to file the transcript for almost three years.” I agree. Further, I would hold that granting the defendant a new trial where the absence of a transcript was due to his inaction constitutes an abuse of discretion. Granting a new trial goes beyond avoiding a penalty for a failure to perfect an appeal. It puts a premium upon defendant’s amnesiac inaction in perfecting and proceeding with his appeal. The majority states that the defendant is not yet home free. Unless the witnesses to his condition when he was driving the auto back in 1964 have better memories than almost everyone else connected with this case, he is at least rounding third base.
*800Counsel for the defendant, on oral argument, stated that “Nobody got hurt,” by the defendant’s avoiding payment of the fine and suspension of his driver’s license for six years. That depends upon who is considered to be involved and affected by what happened here. The defendant only ? The defendant and the city as prosecutor ? No, every citizen concerned with highway safety and traffic law enforcement has reason to find much wrong with a convicted defendant delaying and nearly enough escaping fine and penalty by filing an appeal and allowing it to lapse into the limbo of the forgotten. The public, as well as the parties to the action, have a stake in the fair and equal treatment of defendants in traffic and criminal courts — including their compliance with statutory requirements for the timely perfecting of appeals of convictions.
So the writer would hold granting a new trial here to be an abuse of discretion, reverse and remand for dismissal of the appeal under sec. 269.25, Stats., or for a determination of issues raised on the appeal to the circuit court on the basis of the pleadings, findings and county court judgment.
I am authorized to state that Mr. Justice Connck T. Hansen joins in this dissent.