Opinion of the Court-Morgan, J.

The order to show cause, which was intended to also temporarily restrain the company and the plaintiff herein, was issued under authority of sec. 4292, Rev. Codes, which is as follows: "If the court or judge deem it proper that the defendant, or any of several defendants, should be heard before granting the injunction, an order may be made requiring cause to be shown at a specified time and place, why the injunction should not be granted; and the defendant may, in the meantime, be restrained."

Sec. 4291, Rev. Codes, among other things, provides: "On granting an injunction, the court or judge must require ... a written undertaking on the part of the plaintiff, with sufficient sureties, to the effect that the plaintiff will pay to the party enjoined such costs, damages, and reasonable counsel fees, not exceeding an amount to be specified, as such party may incur or sustain by reason of the injunction, if the court finally decide that the plaintiff was not entitled thereto. . . .

No undertaking was required of Caldwell and it does not appear that one was given. This circumstance presents the question: Is the restraining order provided for in sec. 4292 an injunction in the sense in which that term is used in sec. 4291, requiring that an undertaking be exacted by the court, or judge, upon granting such relief?

The statutory definition of injunction is to be found in sec. 4287, Rev. Codes, and is: "An injunction is a writ or order requiring a person to refrain from a particular act." The restraining order provided for in sec. 4292 seems to answer that description, for its issuance is authorized in the following language: "And the defendant may, in the meantime, be restrained." It amounts to, and is, a temporary injunction.

In case of Price v. Grice, 10 Ida. 443, 79 Pac. 387, this court said:

"It is contended that the restraining order first issued by the judge was inoperative, for the reason that no undertaking was given. That, we think, is correct, as an undertaking

Opinion of the Court-Morgan, J.

should have been given before the restraining order became operative.'

Commenting upon the case above cited, it was said in the case of Wiles v. Northern Star Min. Co., 13 Ida. 326, 89 Pac. 1053: "The provisions of said sec. 4291 are mandatory, and this court has held, in Price v. Grice, . . . that it was error to grant a temporary injunction without requiring a proper undertaking." (See, also, McCracken v. Harris, 54 Cal. 81.)

We conclude that the injunctive provision in the order to show cause amounted to an injunction as defined by sec. 4287, Rev. Codes; that it was void and inoperative by reason of the failure of the district judge to exact, and Caldwell to give, an undertaking as required by sec. 4291; that its violation did not constitute contempt of court, and that the defendant herein was without jurisdiction to adjudge plaintiff guilty and punish him. (Brown v. Moore, 61 Cal. 432; Ex parte Brown, 97 Cal. 83, 31 Pac. 840; State v. District Court, 21 Mont. 155, 69 Am. St. 645, 53 Pac. 272.)

Counsel for plaintiff have urged a number of points other than the one heretofore discussed, but since the foregoing disposes of the case, they will not be considered in this opinion.

The order made by the defendant, as district judge, adjudging the plaintiff guilty of contempt of court and fixing his punishment therefor, is annulled. No costs are awarded.

Budge, C. J., and Rice, J., concur.

Points Decided.

(January 19, 1917.)

W. OAKLEY STOUT et al., Appellants, v. J. W. CUNNINGHAM et al., Respondents.

[162 Pac. 000.]

MOTION TO DISMISS APPEAL EXTENSION OF TIME TO FILE TRANSCRIPT -JURISDICTION-COURT RULES AND STATUTES-LACHES OF ATTORNEY.

1. Jurisdiction of an appeal is acquired by the supreme court upon the filing of notice of appeal and undertaking within the time prescribed by law. Failure to file and serve the transcript within the time fixed by the rules of this court is not fatal to the jurisdiction.

2. An affidavit in support of a motion for extension of time to file transcript on appeal, which states that appellant's counsel made frequent inquiries of the clerk of the district court as to whether the transcript was ready, and urged him to hasten the preparation thereof, is not sufficient when it affirmatively appears from such affidavit that appellant's time had already expired before the application for extension was made.

3. An order made by a justice of the supreme court for an extension of time in which to file transcript on appeal does not operate to make such extension effective, when the time for filing the transcript had already expired at the time the application was made, where from the showing it affirmatively appears that the appellant failed to use proper diligence in the prosecution of his appeal. 4. It is the duty of the clerk of the district court to prepare and file the transcript of record on appeal within the time fixed by the rules of the supreme court, but it is also the duty of appellant's attorney to use due diligence and all reasonable means within his power to the end that the transcript may be filed within the time allowed under the rules or to procure an extension upon a proper showing before the expiration of such time.

5. Held, that it appears from the record due diligence has not been shown in the prosecution of this appeal, and the same must accordingly be dismissed.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Charles P. McCarthy, Judge.

Argument for Respondents.

Motion to dismiss the appeal for failure to file the transcript of record on appeal within the time prescribed by rules 26 and 28 of the rules of this court.

Richards & Haga and Marvin C. Hix, for Respondents.

The appellate court may have jurisdiction over an appeal, yet if the record is not presented to the court, as required by law, it has no jurisdiction to entertain and determine the appeal. (Glavin v. Lane, 29 Mont. 228, 74 Pac. 406.)

An appeal is perfected as soon as the notice of appeal is served and filed, and an undertaking on appeal filed. (Fischer v. Davis, 24 Ida. 216, 222, 133 Pac. 910.)

"If the transcript of record is not filed within the time prescribed by Rule 26, the appeal. . . . may be dismissed on motion. (Coon v. Sommercamp, 26 Ida. 776, 146 Pac. 728; State v. Jewett, 27 Ida. 147, 147 Pac. 288; First Nat. Bank of American Falls v. Shaw, 24 Ida. 134, 132 Pac. 802.)

The laches of the clerk has been held not to excuse the laches of the appellant. (Fain v. Southern Ry. Co., 130 N. C. 29, 40 S. E. 818; Redway v. Chapman, 48 Mo. 218; Coon v. Sommercamp, supra; Davis v. American Freehold Land Mortg. Co., 12 Tex. Civ. App. 37, 33 S. W. 271; Martin v. Phelps, 53 Miss. 134.)

While the statute does not expressly limit the time for serving and filing the transcript, yet it has expressly authorized the court to fix such time, and once the time has been fixed by rule of court, it cannot be changed to fit conditions of a particular case. (State ex rel. Connors v. Foster, 36 Mont. 278, 92 Pac. 761; Hanson v. McCue, 43 Cal. 178; Murphy v. Gould, 39 App. D. C. 363; Talty v. District of Columbia, 20 App. D. C. 489; District of Columbia v. Roth, 18 App. D. C. 547; Rio Grande Irrigation & Colonization Co. v. Gildersleeve, 174 U. S. 603, 604, 19 Sup. Ct. 761, 43 L. ed. 1103, 1105; Magunson v. Billings, 152 Ind. 177, 52 N. E. 803; Mahoney v. Marshall, 3 Ida. 343, 29 Pac. 110; Cole v. Ryan, 24 Mont. 122, 60 Pac. 991.)

Argument for Appellants.

Once the time for doing an act has expired, the court no longer has any authority or jurisdiction to entertain an application for an extension thereof. (Wadsworth (Woodsworth) v. Beardsley, 64 Kan. 885, 67 Pac. 457; 3 Cyc. 120; Freese v. Freese, 134 Cal. 48, 49, 66 Pac. 43; Clark v. Crane, 57 Cal. 629.)

An order extending the time for doing an act must be made before such time has expired. (Southern Pacific Co. v. Pender, 14 Ariz. 573, 134 Pac. 289; Antis v. Parson, 40 Okl. 449, 138 Pac. 1020; West v. Irwin, 54 Fed. 419, 4 C. C. A. 401; Butter v. Lamson, 29 Utah, 439, 82 Pac. 473; Byrd v. Harrison, 45 Okl. 142, 145 Pac. 318.)

Wood, Driscoll & Wood, for Appellants.

Jurisdiction of the appellate court does not depend upon the filing of the transcript. It attaches immediately upon. the filing of the notice of appeal, and cannot be divested, either by failure to file the transcript or by its subsequent loss. (2 Hayne, New Trial and Appeal, sec. 270, p. 1498; Westheimer v. Thompson, 3 Ida. 418, 31 Pac. 797; Taylor v. McCormick, 8 Ida. 37, 66 Pac. 805; Fischer v. Davis, 24 Ida. 216, 133 Pac. 910; Estate of Davis, 151 Cal. 318, 121 Am. St. 105, 86 Pac. 183, 90 Pac. 711; Robinson v. Robinson, 158 Cal. 117, 110 Pac. 112; Chapman v. Bank of California, 88 Cal. 419, 26 Pac. 608; Castro v. Breidenbach, 143 Cal. 335, 76 Pac. 1114; Curtin v. Ingle, 9 Cal. App. 241, 98 Pac. 868; McAvoy v. Jennings (Harkins), 39 Wash. 109, 81 Pac. 77.)

"Rules of court are but a means to accomplish the ends of justice, and it is always in the power of the court to suspend its own rules or to except a particular case from their operation, whenever the purposes of justice require it." (Pickett v. Wallace, 54 Cal. 147.)

"Unavoidable delays in the preparation and printing of transcripts are always accepted as ample excuses for failure to file the same within the prescribed time." (2 Hayne, New Trial and Appeal, 1526.)

No dismissal will be ordered where the transcript is on file at the time the motion to dismiss is made. (4 Corpus Juris,