
    Caroline L. Cameron v. Timothy Calkins.
    
      Dismissal of appeal.
    
    An appeal will not be dismissed where the case was not settled within the time limited by law, if the appellant used due diligence to obtain a settlement and was prevented by causes beyond his control, such as the court stenographer’s inability through sickness to finish a transcript of the testimony.
    Motion to dismiss appeal.
    Submitted and denied April 7.
    
      Brown é Patterson for the motion.
    
      J. H. Canvpbell against.
   Marston, C. J.

A motion was made in this case to dismiss the appeal because the case was not settled within three months from and after the date of the entry of the decree under Act No. 26, Public Acts 1877, p. 17.

The witnesses were examined in open court, and the appellant shows that he applied to and used due diligence to obtain from the official stenographer a copy of the testimony, but was unable so to do within the period named. We are of opinion that the limitation of time fixed by this statute cannot be applied to a case like the present. Cases must frequently arise where, owing to sickness or inability of the circuit judge or stenographer, the appellant would be wholly unable to have his case settled within the period fixed, and we cannot think the Legislature intended to deprive a party of his right to an appeal because not taken within a time fixed from circumstances beyond his control. Where it is within the power of a party to have his case settled, and he does not do so, he may well be held bound thereby; but where the delay is caused by officers of the court over whom he has no control, and without fault or want of due diligence on his part, we are of opinion that a settlement made after the period of three months will be good.

The motion must be denied.

The other Justices concurred.  