The appeal in this case was perfected January 15, 1924. A reporter's transcript was lodged with the clerk April 21, 1924. It seems that a praecipe for record on appeal had been given to the clerk before this. On April 25th, the clerk sent two *Page 497 copies of what from the correspondence would appear to be a clerk's transcript, including the reporter's transcript, to counsel for appellants. The appellants' attorneys kept this transcript over ten days, and then returned it to the clerk with suggested changes in the clerk's transcript. On May 10th, the clerk again sent two copies to appellants' counsel completed. These appellants' counsel then served upon counsel for respondent by express, with a letter suggesting no changes in the reporter's transcript, but reciting them as "two copies of the completed transcript." The only suggested change was as to something in the notice of appeal, which is no part of the reporter's transcript. A controversy arose between counsel. No steps were taken to have the reporter's transcript settled, and on September 29, 1924, on motion to dismiss the appeal, this court ordered "that the record on appeal be completed, served and filed and the motion to dismiss the appeal be held in abeyance to be submitted and considered when the case is submitted on the merits."
The appellants took no further steps to settle the reporter's transcript until October 2, 1924, and at no time asked or received any extension of time to file a clerk's transcript in this court. On November 29, 1924, the reporter's transcript was brought on for settlement, and settled by the Hon. Miles S. Johnson, Judge of the court, reciting: "By virtue of the order of the Supreme Court this transcript is settled. . . ."
Appellants' counsel contend that they had previously sent a copy of the incomplete clerk's transcript, including the unsettled reporter's transcript, to counsel for respondent, and were thus deprived of any way to serve for settlement a reporter's transcript earlier. They must have always had on hand their own copy of the reporter's transcript, of which they could have made use. Appellants have wholly misconceived the practice prescribed by statute for settling a reporter's transcript. The reporter's transcript was not served within five days, as provided by statute, nor within any reasonable time thereafter, nor has *Page 498 any sufficient excuse been shown for the failure to serve it. The reporter's transcript was, therefore, stricken from the record.
The motion to dismiss the appeal involves also the clerk's transcript. As said, no extension of time was ever secured for filing this, and it was not filed in this court within the time prescribed by the rules, nor for a long time thereafter, the appeal having been taken on January 15, 1924, and the clerk's transcript filed in this court on December 8, 1924. No sufficient excuse is shown for this failure and negligence. The appeal should, therefore, be dismissed.
Wm. E. Lee and Givens, JJ., dissent from both of the foregoing opinions.