Burns v. Brown

ADAMS, P. J. This is a motion to dismiss an appeal which was taken by plaintiffs above named from a judgment quieting defendants’ title to a portion of a mining claim. Notice of appeal was duly filed on February 28, 1944, and on March 7th appellants filed a notice reciting that “pursuant to Rules 6 and 7 of Rules on Appeal For the Supreme Court and District Courts of Appeal . . . appellants desire in lieu of a reporter’s transcript to pursue and perfect their appeal upon an agreed or settled statement as provided for in said Rules 6 and 7.” Appellants filed their proposed narrative statement April 7, 1944, and after having been granted continuances respondents filed amendments thereto on June 5, 1944. On July 31, 1944, appellants filed objections to respondents’ proposed amendments. On the latter date respondents served notice of their motion to dismiss the appeal, and said notice was filed August 7, 1944, the alleged ground therefor being that “no notice to clerk to prepare transcript has been filed, and no transcript is on file herein as required by Rule 5, Subdivision A of Part II of Rules on Appeal.” Said notice of motion was accompanied by a certificate of the clerk of the trial court dated September 14, 1944, setting forth the foregoing facts, and also certifying that no order had been made by the lower court extending time for preparation of the record except that additional time had been granted to respondents to file amendments to plaintiffs’ proposed narrative statement, that no record had been certified and no notice filed by appellants with the clerk designating papers or records which they desired incorporated in the record on appeal “as provided in Rule 5(a) of the Rules on Appeal,” and that the time within which to institute such proceedings or give such notice had expired.

Respondents’ motion was noticed for hearing before this court on September 25, 1944, at which time appellants appeared and requested and were granted leave to file a written opposition to respondents’ motion to dismiss. Appellants alleged in their opposition that said motion was premature because at all times mentioned there was pending: before the trial court the matter of settlement of a narrative statement [144]on appeal “pursuant to Buie 7b of Buies on Appeal.” Said opposition was accompanied by an affidavit of counsel for appellants, and by a copy of the transcript of the register of actions of the trial court. The aforesaid affidavit avers that proceedings for settlement of the statement were participated in by respondents’ counsel and that on September 20, 1944, the trial court made and entered its order “settling narrative statements filed pursuant to Buies on Appeal, Buie 7b” and ordered the engrossment thereof; and that within the time allowed by the order of the trial court appellants intend to cause said statements to be engrossed and otherwise regularly to pursue and prosecute said appeal.