Bucy v. New Amsterdam Casualty Co.

WHITE, P. J. Respondent moves to dismiss this appeal on the ground that appellant has failed to complete the filing of the record on appeal in that the condensed statement in narrative form of all or such portions of the oral proceedings deemed material to the determination of the points on appeal has not been filed as provided by rule 7(a), Rules on Appeal.

Appellant resists the motion on the ground that the delay in filing said settled statement was due to inadvertence and excusable neglect on the part of the attorney employed to prepare such statement for appellant; “that said Proposed Settled Statement of Appellant has been filed with the Court and copies served on plaintiff and respondent together with a copy of the transcript of the proceedings relied on by appellant in the Proposed Settled Statement.” Appellant has also filed a motion pursuant to rule 53(b), Rules on Appeal, to be relieved from default in failing to file its settled statement on appeal within the time prescribed by rule 7(a) of Rules on Appeal. This motion is grounded on the same reasons advanced in opposition to the aforesaid motion to dismiss the appeal.

The record reflects that on March 4, 1954, plaintiff (respondent herein) filed his complaint (on undertaking given for claim and delivery). The relief prayed for was “for judgment against the defendants in the sum of $3,871.08, together with interest at the legal rate from December 9,1952, and for such further relief as to the court may seem proper.

That a cross-complaint for indemnity (on behalf of New Amsterdam Casualty Company) was filed March 30, 1955. That the relief prayed for was for any sums which might be awarded to plaintiff and against cross-complainant in this action; for all costs including attorneys fees incurred by cross-complainant by reason of this action; for costs of this action in cross-complaint; and for further relief as may be proper in the premises.

That judgment, entered June 8, 1955, orders that plaintiff H. R. Buey, doing business as Buey Manufacturing Company, have judgment against defendant New Amsterdam Casualty Company, in the sum of $3,871.08 principal, and $654.86 interest, together with interest on the whole thereof at the rate of 7 per cent per annum until paid; that plaintiff have [426]judgment against defendant New Amsterdam Casualty Company for his costs of suit taxed at $46.30; that cross-complainant New Amsterdam Casualty Company have judgment against cross-defendant Schimel Arms Corporation in the sum of $3,871.08 principal, and $654.86 interest thereon, attorneys’ fees together with interest thereon at the rate of 7 per cent per annum until paid, and for costs of suit. Notice of entry of judgment was served July 1, 1955. No notice of intention to move for a new trial was filed. On August 4, 1955, notice of appeal on behalf of defendant New Amsterdam Casualty Company (appellant herein) was filed. Notice to clerk to prepare clerk’s transcript on appeal was filed August 15, 1955, and on the same day notice to proceed under rule 7 of Rules on Appeal (by a settled statement in lieu of a reporter’s transcript) was filed. On August 22,1955, plaintiff (respondent herein) filed with the clerk a notice for additional record on appeal. On September 12, 1955, the trial judge signed an order extending the time to file said settled statement on appeal to October 12, 1955. The clerk’s transcript on appeal was filed October 21, 1955. No engrossed settled statement on appeal was filed up to December 20, 1955, when the certificate of the county clerk was issued. In support of its motion to dismiss the appeal respondent relies upon the foregoing facts.