
    Smith v. Chicago, Milwaukee & St. Paul Railway Co.
    When it is shown that more than a year has elapsed since an appeal was taken, and neither the original papers, nor copies of the same, have been filed in this court, and it is further shown that no abstract or brief was served or filed for nearly a year after the appeal was taken, and no sufficient explanation or excuse is offered for the delay, this court will dismiss the appeal.
    (Syllabus by the Court.
    Opinion filed April 13, 1893.)
    Appeal from circuit court, Moody county. Hon. P. R. Aikens, Judge.
    
      Lynn & Sullivan, Palmer & Bogde, and F. E. Gill, for appellants.
    
      Winsor & Kittredge, and H. H. Field, for respondents.
   Corson, J.

A motion was made in this court by the defendant and respondent for an order dismissing the appeal. Prom the affidavits served and filed, and the records of this court, it appears that the judgment from which the appeal was taken was rendered on June 16, 1891, and that the notice of appeal and undertaking on appeal were served upon the attorneys for respondent on March 31, 1892. It further appears that neither the original papers, nor copies thereof, have ever been filed in this court, and that neither an abstract nor brief was served on the respondent’s attorneys, or filed in this court, prior to March 11, 1893. We think that, upon the facts shown by the respondent, the motion should be granted. The rules of this court contemplate that a party appealing must proceed with diligence in bringing his case to a hearing in this court. When the appeal is perfected more than 30 days before the commencement of a term of this court, the appellant is required to see that the original papers, or copies, are filed in this court at least 15 days prior to the commencement of the term, and to serve and file an abstract and brief at least 20 days before the commencement of the term. In this case, although the appeal was taken on March 31, 1892, — more than one year ago, — neither the original papers, nor copies, have yet been filed in this court; and although the October, 1892, term of this court was held several months after the appeal was taken, yet no abstract or brief was served until March 14th of the present year, when they were promptly returned as not served in time. Notice of the motion seems to have been duly served upon the attorneys for the appellant, but no explanation or excuse is offered for the delay shown. The respondent is therefore entitled to have the appeal dismissed, but without prejudice. Bank v. Crouch, (S. D.) 53 N. W. Rep. 862; Himebaugh v. Same, Id. It is therefore ordered that the appeal be dismissed, without prejudice.  