Cochems v. Cochems

HANSON, J.pro tem.

Respondents move to dismiss the appeal upon two grounds: (1) that the appeal is taken in the names of two minors and not in the name of the guardian

ad litem

who represented them below and (2) that the notice given to the clerk requesting a clerk’s and reporter’s transcript was not filed with the clerk within 10 days after the appeal was taken, but instead on the 11th day.

In the court below a petition to determine the heirship of the minors in the estate as above entitled was filed by Pauline Cochems as their guardian

ad litem

and upon the allegations thereof issue was joined. A trial having been had the court entered a judgment decreeing that under the terms of the will the two minors, along with their adult sister, were each entitled to only one dollar.

[29]

Thereupon counsel who represented the guardian

ad

litem— and through her the minor children—along with the latter’s adult sister duly served and filed a notice of appeal. The notice signed by counsel recites that the minors and the adult sister appeal from the judgment rendered in favor of the coexeeutors and against appellants’. Within 10 days after the appeal was filed counsel for appellants prepared and mailed to the clerk the notice above mentioned requesting the transcripts and likewise mailed a copy of such notice to counsel for respondent coexeeutors. The notice, however, did not reach the clerk until the morning of the 11th day after the notice of appeal had been taken whereupon he promptly filed it.

In response to the motion to dismiss, counsel for appellants filed his affidavit stating that through inadvertence in computation he concluded he had until October 26, 1951, instead of October 25th to file with the clerk the notice he prepared and mailed on October 25, 1951. Upon the basis of this affidavit appellants pray they may be relieved for the failure of their counsel to file the notice within the time limited by rule 5 of the Rules on Appeal.

It is true as respondents contend that rule 5 expressly provides that any notice pertaining to the preparation of the record