Realty Co. of America v. Coffee

FOURT, J. This proceeding involves a motion by the respondents to dismiss the appeal on file herein for the reason, among others, that the appeal has not been perfected within the time prescribed by the Rules on Appeal.

[188]The record reveals that the ease was tried in the superior court and a judgment therein was entered on April 27, 1956; notice of entry of judgment was filed with the clerk of the superior court on May 3, 1956, and notice of appeal was filed July 3, 1956. At the time of filing the notice of appeal, appellants made a request for a clerk’s transcript and a reporter’s transcript on appeal. On August 8, 1956, the appellants were advised by the clerk that a deposit of $1,130 was required by the clerk. In that the clerk, in his demand, referred to the notice of appeal, counsel for appellants assumed that such sum included all charges of the clerk for the preparation of the instruments and documents requested at the time of the filing of the notice of appeal. On August 9, 1956, appellants caused to be deposited with the clerk the amount demanded, and thereafter, on November 30, 1956, received back from the clerk a refund of $230.60. After the receipt of such refund, the reporter’s transcript, consisting of three volumes, was delivered to counsel for appellants. Counsel assumed that there would subsequently thereto be delivered to him a clerk’s transcript. After several weeks had gone by inquiry was made of the clerk’s office with reference to the clerk’s transcript, and counsel was told by a representative of the clerk’s office “often times the preparation of the same is delayed and that he could assume that the same would shortly thereafter be delivered.” Later the clerk’s office was again contacted by counsel and he was told that an inquiry would be made into the matter.

In the middle of January, 1957, another inquiry was made by counsel, as were others, and finally it was ascertained about January 30, 1957, that the clerk of the trial court had neglected to retain the funds for the preparation of a clerk’s transcript in the approximate amount of the refund of November 30,1956. A deposit was made forthwith by counsel for the appellants, and the clerk’s transcript was thereafter prepared. The certificate on the clerk’s transcript indicated that it was completed April 1, 1957.

The clerk’s transcript and the reporter’s transcript were filed with the clerk of this court on May 2, 1957. On July 3, 1957, a notice by the clerk under rule 17 (a) of the Rules on Appeal was mailed to the attorney for the appellants. At the time of the hearing of the motion to dismiss the appeal, namely on July 23, 1957, 30 days had not elapsed from the date of the notice by the clerk under rule 17 (a). Counsel for