Estate of Wolper

DORAN, J.

A judgment was entered on July 25, 1956, admitting to probate the decedent’s will which had been contested by appellant, a son who had been disinherited in the will. Among other things, the contestant claimed that the decedent was acting under undue influence exercised by David Wolper, another son, who was favored in the will. There was no motion for a new trial, and notice of appeal was filed on August 6, 1956. The clerk’s certificate indicates that there was no stipulation to prepare an agreed statement, or any proposed narrative statement, nor any order extending the time for preparation of such record, and that no record was certified due to the fact that no payment had been received by the clerk within the time prescribed by rule 5(c) of Rules of Appeal.

The respondents’ motion to dismiss the appeal is predicated on appellant’s failure to comply with rules 4(a) and (c) providing that a notice of appeal shall not be effective unless within 10 days after notification, appellant shall either deposit with the clerk the cost of preparing a reporter’s transcript or secure a waiver of such deposit by the reporter. Upon being notified of estimated cost in the sum of $315, appellant failed to comply with the above rules.

The motion to dismiss also relies upon rule 5(c), making a similar requirement in respect to preparation of a clerk’s transcript. It appears from respondents’ motion that “A letter by Respondents’ attorney to Appellant indicated that a Motion to Dismiss the Appeal would be made unless payment of costs was made by the 13th”; that on September 13, 1956, the clerk delivered to respondent’s attorney the clerk’s certificate

re

dismissal at about 3 p. .m, and that sometime thereafter, on the same day, appellant’s attorney paid to the clerk the cost of the clerk’s transcript.

Rule 7(a) provides that appellant within 30 days after notice, shall serve a condensed statement in narrative form,

[251]

but appellant has not initiated any such proceeding. Rule 10 provides that where failure to comply with rules is the fault of appellant, the appeal may be dismissed.

Respondents’ amended motion to dismiss appeal was filed on October 1, 1956, and on October 19, 1956, appellant filed a motion to be relieved of default on the ground of surprise, inadvertence, excusable neglect and mistake. The supporting affidavit avers that appellant was without sufficient funds to pay the $315 required for the reporter’s transcript, and that the sum of $43.55 was paid to the clerk for the clerk’s transcript on September 13, 1956.