
    State of Missouri to use of W. W. Kimball & Company, Respondent, v. G. W. Lowder et al., Appellants.
    St. Louis Court of Appeals,
    January 2, 1895.
    Practice, Appellate: diligence in prosecution op appeal. It is the duty of an appellant, who intends to file a full transcript of the record in this court, to order the clerk of- the trial court to prepare such transcript as soon as the hill of exceptions in the case is filed. This is essential to the prosecution of the appeal with diligence.
    
      Appeal from the McDonald Circuit Cotirt. — Hon. J. C. Lamson, Judge.
    Aeeirmed.'
    jBT. C. Pepper for appellants.
    
      J. A. Frink and O. L. Cravens, for respondent.
   Rombauer, P. J.

The plaintiff moves to affirm the judgment of the trial court, and in support of its motion shows the following facts: The judgment was recovered on August 17, 1893, and an appeal granted defendants to this court October 24, 1893; yet the transcript of'the record was not filed in this court until September 13,1894, and until after the time when the plaintiff notified the'defendant that it would move for an affirmance of the judgment. The only cause shown by the affidavit of two of the defendants, why the judgment should not be affirmed against them, is that the. clerk never notified them or their attorney of record that he had completed the transcript of the cause until May, 1894. This statement is contradicted by the clerk’s certificate; but, even assuming it to be true, it fails to show good cause why the judgment should not be affirmed, since it nowhere appears that either the defendants or their attorney ever ordered such transcript to be made. We have heretofore decided that, where a party appealing desires to bring up the transcript of the record, instead of filing an abstract of the record only under the provisions of section 2253 of the Revised Statutes of 1889, it is his duty to order the clerk to make out such transcript as soon as the bill of exceptions is filed, and his failure to do so, resulting in delay, is a failure to prosecute the appeal with due diligence.

It results that the plaintiff’s motion must be sustained. Judgment affirmed.

All concur.  