Peebler v. Olds

THE COURT. The matters before us arise upon an appeal from a judgment granting a permanent injunction. On May 26, 1944, the clerk’s and reporter’s transcripts were filed in the reviewing court. On July 6, forty-one days later, respondents noticed a motion to be heard September 27, to strike the reporter’s transcript on the ground that it was not prepared and certified within the time or in the manner prescribed by law. Included in the same document and designated to be heard at the same time, was a motion to dismiss the appeal for failure of the appellants to file their opening brief.

The time for the filing of an opening brief is prescribed in rule 16 (a) of the Rules on Appeal, and an opening brief not filed within the thirty-day period there prescribed, or within any valid extension allowed thereunder, is in default. Therefore, in the absence of any valid extension of time, appellants’ opening brief was due thirty days after filing of the record, or on June 25, 1944. When respondents on July 6 filed their motion to dismiss, appellants were in default for a period of only eleven days. Rule 17(a) provides, in part, that “If the appellant’s opening brief is not filed within the time prescribed in subdivision (a) of Rule 16, the clerk of the reviewing court shall notify the parties by mail that if the brief is not filed [658]within 30 days after the date of mailing of the notification, the appeal will be dismissed, unless good cause is shown for relief. ...” It is thus apparent from rule 17(a) that the reviewing court has a broad power to grant relief from default. (See, also, rule 53(b).) It is true that the rules contemplate that some explanation be offered for the default, and while the record herein does not affirmatively reveal any specific reason for the eleven-day delay we are satisfied that the failure to explain the same as well as the further delay in the filing of the brief, is traceable to the second part of respondents’ motion which was directed at the striking of the reporter’s transcript. It is apparent from the record herein that it was the latter motion which principally absorbed the attention of the parties.

As stated above, when respondents on July 6 moved to dismiss the appeal because of the eleven-day default in the filing of the opening brief, they also noticed a motion to strike the reporter’s transcript. Both motions, as indicated above, were designated to be heard on September 27, a period of two and one-half months in the future. Confronted with this bifurcated motion—a portion of which potentially might alter or change the'nature of the record on which the appeal was to be presented—any further delay in the filing of appellants’ opening brief is understandable and excusable. Obviously, while the motion to strike the reporter’s transcript was pending appellants could not intelligently prepare their brief for if the reporter’s transcript were stricken they would have to proceed on the clerk’s transcript or judgment roll. The character of the record would make a material difference in the substance of their brief. While correct practice should have suggested that they seek additional time for the filing of the brief, particularly when the clerk’s transcript was on file and unchallenged, nevertheless, under all the circumstances, the default occurring while appellants were availing themselves of their right to present their appeal upon a full and proper record should be relieved. (Cf. Riskin v. Towers, 24 Cal.2d 274, 277 [148 P.2d 611, 153 A.L.R. 442].) After the motion, the uncertainty arising from the proceedings in connection with the record offers a reasonable explanation for appellants’ default in the filing of the brief. Moreover, the brief has been since served on respondents and was tendered for filing at the time of the oral argument herein. We are of the opinion,