
    CITY OF KALAMAZOO v. KALAMAZOO HEAT, LIGHT & POWER CO.
    Appeal — Delay—Fault op Stenographer.
    Delay in perfecting an appeal, due to the stenographer’s failure to furnish in time a transcript of the testimony, is not ground for dismissing it, where it appears that the appellant acted with all diligence, procuring an order for an extension of the stenographer’s notes immediately after the decree was rendered. Harrison v. Van Burén Cireuit Judge (unreported), McGrath, Mand. Cas. No. 965, distinguished.
    Bill by the city of Kalamazoo to enjoin tbe Kalamazoo Heat, Light & Power Company from occupying the city streets. Prom a decree for complainant, defendant appeals. On motion to strike from the files the case as settled, and to dismiss the appeal.
    Submitted December 2, 1899.
    Motion denied December 21, 1899.
    
      Boudeman & Adams (N. II. Stewart, of counsel), for the motion.
    
      William G. Howard and E. A. & R. B. Crane, contra.
    
   Per Curiam.

The delay in settling the case was not due to any fault of appellant. The order for the extension of the stenographer’s notes was given immediately after the decree, and at every stage the appellant appears to have used all reasonable diligence. The delay was owing to the default of an officer of the court, and is excused, under our former rulings. Cameron v. Calkins, 43 Mich. 191; Gram v. Wasey, 45 Mich. 223; Lake Shore, etc., R. Co. v. Chambers, 89 Mich. 5. See, also, Waterman v. Bailey, 111 Mich. 571.

The case of Harrison v. Van Buren Circuit Judge, McGrath, Mand. Cas. No. 965, relied on by appellee’s counsel, is not like this case, as it appears that no order for extension of notes was given in that case, which the stenographer was bound to act upon, until after more than four months had elapsed after the decree.

The case, as settled, should not be stricken from the files, nor should the case be dismissed, for the reasons stated in the motion.

Motion denied, with costs.  