J. W. ADAMS, Respondent, v. LEWIS H. ROGERS, Appellant
Adams v. Rogers
Norcross, C. J.: I concur.
J. W. ADAMS, Respondent, v. LEWIS H. ROGERS, Appellant.
[No. 1771]
J. W. ADAMS, Respondent, v. LEWIS H. ROGERS, Appellant.
1. Appeal and Error—Dismissal of Appeal—Grounds—Showing.
Under Supreme Court Rule 3, providing that a motion to dismiss an appeal for failure to file the transcript of the record in time shall be accompanied by the certificate of the clerk below, certifying enumerated facts, it is error to dismiss an appeal merely on the affidavit of counsel, especially where the affidavit did not show the essential facts.
2. Appeal and Error—Motion to Dismiss—Service—Necessity.
A motion to dismiss an appeal under Supreme Court Rule 3, authorizing the dismissal of an appeal for failure to file the transcript within the time prescribed, need not be served.
3. Appeal and Error—Dismissing Appeal—Reinstating Appeal.
The unsworn statement of counsel for appellant, made in the absence of counsel for respondent, excusing the delay in filing the transcript on appeal, does not establish a good cause for vacating an order of dismissal within Supreme Court Rule 3, authorizing the court to restore a cause dismissed on good cause shown on notice to the adverse party.
i. Appeal and Error—Dismissal of Appeal—Vacation of Order.
Where appellant failed to promptly call the attention of the supreme court to its error in dismissing an appeal under Supreme Court Rule 3, and failed to show any good cause for vacating the order of dismissal, the order would be vacated only on appellant within a specified time presenting to the court the record on appeal with a satisfactory showing by affidavit that the same was taken in good faith.
Talbot, J., dissenting.
Appeal from the District Court of the First Judicial District of the State of Nevada, Esmeralda County; F. P. Langan, Judge.
Action by J. W. Adams against Lewis H. Rogers. From a judgment for plaintiff, defendant appeals.
Order dismissing appeal conditionally vacated.
The facts sufficiently appear in the opinion.
McIntosh & Cook, and James Donovan, for Appellant.
Alfred Chartz, for Respondent.
By the Court,
Sweeney, J.:
This action was originally tried in the First Judicial District Court of the State of Nevada, at Hawthorne, Esmeralda County, on or about the 1st day of April, 1907, and judgment entered in favor of plaintiff on or about the same date. The defendant subsequently gave notice of motion for a new trial and filed a statement, and the court subsequently settled said statement, and thereafter overruled said motion for a new trial. The defendant did not appeal from said order overruling said motion for a new trial within the time allowed by law, but within the time allowed by law, on the 3d day of March, 1908, gave his notice of appeal from the judgment, and within five days thereafter perfected his said appeal to the Supreme Court of the State of Nevada by giving a bond staying execution and for costs. The appeal was perfected more than thirty days prior to the commencement of the July term of the Supreme Court of the State of Nevada, and it appears that no transcript of the record of said cause was filed in this court by said appellant. Upon the 10th day of July, 1908, and within the first week of the July term, counsel for the above-named respondent filed the following affidavit and motion in the above-entitled cause:
"Alfred Chartz, being first duly sworn, deposes and says: That he is the attorney for the plaintiff and respondent in the above-entitled action; that said action was tried before Hon. Frank P. Langan, District Judge of the First Judicial District Court of the State of Nevada, at Hawthorne, Esmeralda County, Nevada, on or about the 1st day of April, 1907, and judgment entered in favor of the plaintiff on or about the 1st day of April, 1907; that the defendant subsequently gave notice of motion for new trial and filed a statement, and the court subsequently settled said statement, and subsequently overruled said motion for new trial; that defendant did not appeal from said order overruling said motion for new trial within the time allowed by law, but that defendant within the time allowed by law, and on the 31st day of March, 1908, gave his notice of appeal from the judgment, and within five days thereafter said defendant perfected his said appeal to the Supreme Court of the State of Nevada by giving a bond staying execution and for costs; that said appeal was perfected more than thirty days prior to the commencement of the July term of the Supreme Court of the State of Nevada; that no transcript of the record, of said cause has yet been filed in this court or any other proceeding taken by said appellant; that, under and by virtue of the provisions of Rule 3 of the Supreme Court of the State of Nevada, affiant, on behalf of plaintiff, J. W. Adams, moves the court that said appeal be dismissed."
At the next session of court following the filing of said affidavit and motion, and on the 20th day of July, 1908, the matter was presented to the court, and an order was made dismissing tire appeal, which order recited that it was made in pursuance of the provisions of Rule 3 of this court, and further providing that the dismissal was subject to the right of. appellant to have the case restored " upon good cause shown and notice to the opposite party." On the 30th day of July following counsel for appellant filed and served a notice that on the 14th day of September, 1908, appellant would move the court to vacate and set aside the order dismissing the appeal on the following grounds:
" (1) That no notice of the motion to dismiss said appeal was ever served on the appellant or his attorney.
" (2) That said appeal was not set down for hearing nor was appellant notified that the cause would be heard."
.Upon the same day, to wit, July 30th, a notice was filed and served, reading:
"Comes now the appellant, and moves the court to vacate the order dismissing the appeal in the above-entitled action on the following grounds:
"(1) That no notice of the motion to' dismiss said appeal was ever served upon the appellant or his attorney.
"(2) That said motion could not be made and be of force and effect without giving notice to said appellant of the time of the hearing of said motion.
" (3) That' said motion was not called up on any regular term day of said court, or upon any day at which the appellant would' be obliged to take notice without first having notice served upon him." • " ;
It will be observed that the motion and notice of motion are not in accord with each other; that the motion was upon three grounds, while the notice specified but two, and in only the first designated were they identical. In neither the notice of motion nor the motion was any question' raised that the motion to dismiss did not conform to the requirements of said Rule 3. On the 3d day of August, 1908, this court made an order setting the hearing of the motion to reinstate for the 14th day of September, 1908, the date specified in appellant's notice'. On the date last above mentioned counsel for appellant failed to appear. Whereupon counsel for respondent suggested to this court that appellant be allowed ten days to file a brief, respondent five days to reply, and, if the briefs be not filed, that the motion staird submitted. No brief was filed by counsel for appellant within the time allowed by order of this court. On the 28th day of September, 1908, counsel for appellant appeared in court in another cause in which he was counsel, and asked for and was granted until October 5th to file a brief in support of the motion to reinstate in this cause, counsel for respondent to have five days thereafter to reply. At the time of making this request counsel for appellant made an unsworn oral statement, to the effect that the delay in filing the statement on appeal in this court was due to the congested condition of the clerk's office in Esmeralda County. Counsel for respondent was not present when this statement and order were made.
Again, counsel for appellant failed to file any brief within the time allowed pursuant to this request. On the 5th day of October, 1908, counsel for respondent filed a motion that the order dismissing the appeal be affirmed, and that the motion to vacate the said order of dismissal be denied, which motion recited the failure of counsel for appellant to file a brief within the several times allowed by the court. This motion was not noticed or served. On the 10th day of October, 1908, five days after his time for so filing had expired, counsel for appellant filed a ten-line brief, reading in full as follows:
" In this case motion was made by the respondent's counsel to dismiss the appeal. This motion was not served upon the appellant, as the record shows. Rule 3 of the supreme court is the only rule under which a motion may be made in the supreme court to dismiss an appeal without notice, and, as this motion does not come within the provisions of said rule, the court erred in sustaining the motion to dismiss said appeal. Wherefore the appellant respectfully requests that such motion to dismiss said appeal be vacated and the case stand of record in the supreme court to be heard upon the merits."
This brief does not appear to have been served. On November 9, 1908, an order was entered in the minutes of the court that the matter stand submitted. Rules 2 and 3 of this court provide:
Rule 2; "In all cases where an appeal has been perfected, and the statement settled (if there be one) thirty days before the commencement of the term, the transcript of the record shall be filed on or before the first day of such term."
Rule 3: "If the transcript of the record be not filed within the time prescribed by Rule 2, the appeal may be dismissed on motion during the first week of the term, without notice. A cause so dismissed may be restored during the same term, upon good cause shown, on notice to the opposite party; and, unless so restored, the dismissal shall be final and a bar to any other appeal from the same order or judgment. (2) On such motion there shall be presented the certificate of the clerk below, under the seal of the court, certifying the amount or character of the judgment; the date of its rendition; the fact and date of the filing of the notice of appeal, together-with the fact and date of service thereof on the adverse party, and the character of the evidence by which said service appears; the fact and date of the filing of the undertaking on appeal; and that the same is in due form; the fact and time of the settlement of the statement, if there be one; and also that the appellant has received a duly certified transcript, or that he has not requested the clerk to certify to a correct transcript of the record; or, if he has made such request, that he has not paid the fees therefor, if the same have been demanded."
That this court erred in dismissing the appeal upon the showing made there can be no question. Subdivision 2 of Rule 3, as above set forth, provides that the motion to dismiss shall be supported by the certificate of the clerk, and specifies what that certificate shall show. Rule 2 provides, not only that the appeal be perfected, but that the statement, if there be one, be settled thirty days before the commencement of the term, in order to require its filing on or before the first day of the term. The showing in this case was not only made by affidavit, instead of by the clerk's certificate, but there is an absence of showing of essential facts.
The question that has occasioned this court some difficulty in determining is whether under all of the facts we ought to reinstate the appeal conceding that we technically erred in dismissing it in the first instance. It was not until nearly three months had elapsed after the appeal was dismissed, and after appellant had forfeited his rights for the second time to file a brief, did he raise the question that the motion to dismiss did not come within the provisions of said rule. Neither the notice of motion nor the motion to vacate the order of dismissal questioned the sufficiency of the motion to dismiss, but only matters of service, notice, and time of hearing. As a motion to dismiss under Rule 3 does not have to be served, the grounds stated in the motion to vacate the order could have but little, if any, force. No attempt or offer has ever been made by counsel for appellant to excuse the delay in filing the statement upon appeal, excepting the unsworn statement of counsel for appellant made in the absence of counsel for respondent. It is sufficient to simply say that this is not a proper method to establish a "good cause" for vacating an order of dismissal. There has never been any "good cause" shown for vacating the order of dismissal other than the questionable one that our attention has been called in an irregular manner to the fact that the order of dismissal was not in strict accordance with the provisions of the rule governing. No statement on appeal in the cause has ever been filed or offered for filing, nor has any contention ever been made that the appeal presents a meritorious question, or that the appellant was injuriously deprived of any substantial right by the dismissal.
Had counsel for appellant promptly called attention to our error, we should without hesitation have corrected it. We might we think now with propriety hold that counsel for appellant have waived the right to question the regularity of the order. However, as we erred in the order of dismissal, in order that such error may not prejudice the substantial rights of appellant, we are disposed to vacate our former order upon the conditions following: It is ordered that, if appellant shall within fifteen days after notice or receipt of a copy of this opinion and order present to this court for filing the record on appeal in said cause, together with a satisfactory showing by affidavit that the appeal is taken in good faith, and not for delay, merely, the order dismissing the appeal will be vacated; otherwise not.
Norcross, C. J.: I concur.