
    AUSTIN JOHANNA v. A. L. LARSON and Thomas Lennon.
    (150 N. W. 535.)
    Appeal — failure to have record sent up — motion to dismiss — practice.
    Unless appellant causes the record, on appeal to be filed with the clerk of this court within thirty days from the date of filing this opinion, and pays to respondent’s counsel the sum of $25; also serves his brief on appeal on or before May 1st next, and enters into a stipulation with respondent’s counsel consenting that the cause may be placed upon the short cause calendar of this court, such appeal will be dismissed.
    Opinion filed March 19, 1915.
    Appeal from District Court, Wiliams County, F. E. Fish, J. Motion to dismiss for failure to diligently prosecute the appeal.
    Motion granted conditionally.
    
      T. M. Cooney and Bwrdich & Murphy, Milliston, North Dakota, for the motion.
    
      Wm. Q. Owens, Williston, North Dakota, contra,.
    
   Fisk, Ch. J.

On respondent’s application an order was issued requiring appellant to show cause why the appeal herein should not be dismissed for lack of prosecution. In support of such order one of respondent’s counsel made and served an affidavit setting forth that the appeal was taken to this court from the judgment of the district court on or about December 4, 1913, by the defendant Larson by the service of a notice of appeal and undertaking on plaintiff’s attorney, one A. J.’ Bessie. That aside from the service on respondent’s attorney of a transcript of the evidence, no other steps have been taken to perfect the appeal by settling a statement of the case and causing the record to be certified to this court.

On the return day of such order to show cause appellant’s attorney appeared in opposition to the motion and filed an affidavit wherein, among other things, he states that on February 28, 1914, a stipulation was entered into between counsel for the respective parties as follows: “It is hereby stipulated by and between the above-named plaintiff and respondent, Austin Johanna, by and through his attorney, Aaron J. Bessie, and A. L. Larson, one of the above-named defendants and the appellant herein, that the hereto attached instruments, consisting of the summons and complaint, answer, together with notice of trial, note of issue, order for judgment, judgment and transcript of testimony, together with exhibits, constitute the judgment roll in the above and foregoing entitled action, and that the hereto attached transcript is a true and correct transcript of all the evidence adduced at the trial of said action, and it is hereby further stipulated and agreed that the same may be presented to the judge of the district court, .as hereto attached, and by him certified and ordered as the settled case in the foregoing entitled action on appeal, and that the same shall be certified as the records and files and proceedings bad in tbe trial of tbe said action on appeal to tbe supreme court of tbe state of North Dakota. It is hereby further stipulated and agreed by and between tbe above-named plaintiff and respondent and tbe above-named defendant and appellant, that notice and bearing on application for settlement 'of tbe case and certification of tbe same, and tbe time of service of tbe same, is hereby in all things waived, and that tbe same may be certified as tbe settled case in said action to tbe supreme court.”

In such affidavit it is also set forth that after such stipulation was made plaintiff’s attorney, A. J. Bessie, removed from this state and established bis residence in Montana, where be later died “before taking up tbe matter in question in accordance with tbe stipulation bad herein in reference thereto.” It is also stated in such affidavit: “That prior to tbe death of tbe said A. J. Bessie there was a distinct understanding between tbe counsel for both parties that tbe said matter should be taken up at any time at tbe convenience of counsel and tbe judge of tbe district court; that this affiant entered into such stipulation at tbe express request of tbe said A. J. Bessie, respondent’s attorney, who was at that time preparing to enter upon tbe practice of law in Montana, and for that reason stated to affiant that be desired that all matters pertaining to tbe appeal to tbe supreme court be indefinitely postponed so that tbe matter could be reached and definitely settled at such time as tbe said Bessie could give it tbe attention it required; that by reason of tbe sudden and unexpected demise of tbe said Bessie, tbe stipulations entered into could not be carried out, and that at no time has there been a notice served upon affiant or bis client of tbe substitution of T. M. Cooney, or any attorney for respondent . . .; that affiant has . . . been unable to ascertain that any substitution of attorneys has been made.”

Affiant further avers bis willingness to immediately take all necessary steps to perfect tbe record on such appeal, and that tbe delay in doing so is attributable to tbe facts aforesaid. That his client has. incurred tbe expense necessary to procuring tbe transcript and copies of tbe record to be used on tbe appeal. He also states that respondent removed from this state, and that bis place of residence or place where service of any notice could have been made upon him is and was unknown to affiant.

In rebuttal to such showing, respondent’s counsel produced a letter of date May 1, 1914, addressed to appellant’s counsel advising him that Mr. Bessie had turned said case over to Burdick & Murphy for attention. This letter purports to be signed by Usher L. Burdick and John J. Murphy. Also a reply thereto of date May 4, 1914, addressed to Burdick & Murphy and signed by appellant’s counsel, reading as follows: “Referring to your letter of May 1st, which was received, I beg to advise.you that the case of Austin Johanna v. Lennon and Larson is ready for the supreme court. As Mr. Bessie and I stipulated, the case could be settled by the judge without further notice.”

The above is substantially all the showing on such motion. After duly considering the same, we fail to see how appellant has successfully excused the long delay in causing the statement of case to be settled and the record certified to this court. In view of the written stipulation waiving notice and hearing of application for settlement of the statement of case and the certification thereof, and containing an express consent that the same was correct and might be settled and certified, we fail to see why any delay was occasioned by the other fact stated, but in any event there appears to have been no need of the long delay which has elapsed since May 4th, the date of the letter written by appellant’s attorney. The alleged oral understanding claimed to have been had between counsel seems to be squarely in conflict with the prior written stipulation, and the letter of appellant’s counsel aforesaid also seems to negative the fact that any such oral stipulation was entered into, for no mention thereof is therein made. However, we are convinced of the good faith of counsel for appellant, and do not question the fact that he labored under the mistaken belief that some such oral understanding was had with Mr. Bessie. We are also satisfied that appellant took the appeal in good faith, for he has incurred the expense of procuring the transcript and copies to be used on such appeal. Furthermore, it does not appear that counsel for respondent have, at any time prior to applying for this order, taken any steps to expedite such appeal, but on the contrary have by their silence impliedly acquiesced in the long delay. They are therefore not in as favorable a position to urge their motion at this time as they otherwise might have been.

We have concluded, in view of tbe facts before us, to grant respondent’s motion for a dismissal only upon tbe following conditions: Tbe

appeal will be dismissed unless appellant shall within thirty days from the date of filing this opinion cause the record on appeal to be certified to the clerk of this court, and pay.to respondent’s counsel as terms the sum of $25; also serve his brief on respondent’s counsel on or before May 1st nest, and enter into a stipulation with respondent’s counsel consenting that the cause may be placed upon the short cause calendar of this court.

It is so ordered.  