
    [No. 700.
    Decided October 18, 1892.]
    Engelbert Bast, Appellant, v. Cornelius B. Hysom, Adelbert Folsom and D. H. Moore, Respondents.
    
    APPEAL — FAILURE TO FILE TRANSCRIPT — EXCUSE.
    All appeal will not be dismissed for failure to file a transcript within sixty days after notice of appeal, where it appears that the delay was caused by the withdrawal from the clerk’s office and the misplacing by the attorney for respondents of the original petition in the ease, it satisfactorily appearing that appellant acted with due diligence in preparing the transcript after the finding and return of said petition.
    
      Appeal from Superior Court, Snohomish Comity.
    
    
      Bell <& Austin, for appellant.
    
      Black & Edwards, for respondents.
   The opinion of the court was delivered by

Dunbar, J.

Respondents move to dismiss this appeal, and affirm the judgment appealed from, for the reason that more than sixty days have elapsed since the giving of the notice of appeal, and that no transcript has been filed with the clerk of the supreme court. It is true that the transcript was not filed within the statutory time; but it also appears from the affidavits in the case, and from the admission of respondents, that the delay in the first instance was caused by the taking from the clerk’s office below by the attorney for the respondents of the original petition in the case, and the misplacing of said petition by said attorney, so that it could not be found until the time for filing the transcript had nearly expired. We are satisfied from the showing made that after the finding of the said petition the appellant acted with due diligence in preparing the transcript, and that he ought not to be held responsible for a delay which was initiated by the carelessness of respondents.

The motion is, therefore, denied.

Anders, C. J., and Scott, Stiles and Hoyt, JJ., concur.  