In Re McGREGOR In Re PERMISSION TO APPROPRIATE WATERS OF MARTIN CREEK
In re McGregor
In Re McGREGOR In Re PERMISSION TO APPROPRIATE WATERS OF MARTIN CREEK
In Re McGREGOR In Re PERMISSION TO APPROPRIATE WATERS OF MARTIN CREEK
No. 3119
September 3, 1935.
48 P. (2d) 418.
Gray Mashburn, Attorney-General, and W. T. Mathews and Julian Thruston, Deputy Attorneys - General, for Appellant, State Engineer.
McNamara & Robbins, for Appellant, Harold Wm. Merritt.
Milton B. Badt, for Respondent, Frank McGregor.
OPINION
By the Court,
Ducker, C. J.:
There is before us the motion of Frank McGregor, respondent, to dismiss the appeal and affirm the judgment in the above - entitled matter. The principal ground of the motion is that no transcript of the record on appeal has been filed with the clerk of this court within thirty days after the appeal was perfected, as required by rule 2 of the rules of the supreme court, or at all.
The motion came on for hearing in this court May 29, 1935, at 10 a. m. At that time counsel for Harold William Merritt, one of the appellants, appeared and presented a motion for an order of this court extending the time of the appellants to serve and file their transcript of the record on appeal from the judgment, to and including said 29th day of May. This motion was made on the ground of the excusable neglect of John E. Robbins, Esq., one of the attorneys for said appellant, in having failed to serve and file such a transcript in the time required by law, and was supported by his affidavit. The motions were heard together, and upon the submission thereof an order was made extending the time for filing the record on appeal until the decision was rendered on the respective motions.
As the appellants' default is conceded, the only question is whether the neglect in this respect is excusable. It appears that the appeal, which was taken from the judgment, was duly perfected on the 19th day of November, 1934. To comply with said rule 2 it was necessary to serve and file the transcript of the record on appeal within thirty days from said last-mentioned date. It appears from the affidavit of Milton B. Badt, counsel for respondent, that from time to time appellants were given extensions of time to serve and file their proposed record on appeal up to and including March 18, 1935. On being given the last extension of time, counsel for said appellants was informed by letter from affiant that, unless they became active in the matter, he would move to dismiss; that since then no further extension has been given or requested, and no record on appeal has been served or filej.
On the hearing, counsel for appellant Merritt presented a proposed transcript of the record on appeal, which, under the direction of the court, was deposited with the clerk pending a decision on the motions.
The matters which are claimed to show a case of excusable neglect are set out in the affidavit of said attorney for appellant Merritt, and are substantially as follows: He agreed with the attorney-general and his deputies, attorneys for the state engineer, also an appellant, that he would prepare, serve, and file the record on appeal in the action, and that no fault in the matter rests upon said officials. From time to time prior to January 20, 1935, said attorney for respondent orally extended the time to complete the record on appeal. On January 21, 1935, affiant became a member of the legislature of the State of Nevada as state senator, and was in continuous attendance at the legislature from that date to and including March 30, 1935,' and as such state senator was constantly occupied with the business of the state senate to the exclusion of outside matters, including many matters pending in his law office and practice, among which was the completion of this appeal. He intended to complete it and prosecute it to a final determination and has advised his client that his said appeal is well grounded in law. He believed he could obtain extensions of time from respondent's attorney for the asking, which belief was founded on the generous attitude of the latter in this respect in the past, and believed that if he had asked for a further extension it would have been freely given and no motion to dismiss would have been made.
Respondent's attorney wrote a letter to affiant's address at Elko, Nevada, on or about March 8, 1935, extending the time to March 18, 1935, and mailed a copy of the letter to the office of the attorney-general. The letter was not forwarded to affiant or called to his attention until March 29, 1935, on or about which date notice thereof was conveyed to him in the senate chambers by.the Honorable W. T. Mathews, Deputy Attorney-General. On affiant's return to Elko on March 31, 1935, after the adjournment of the legislature, he found his wife so seriously ill that it necessitated her removal to the Elko hospital, where she submitted to a major operation and was not permitted to leave until May 2, 1935. Since that time to the time of making the affidavit on May 28, 1935, his wife had been confined to her home under the constant care of a physician. The condition of his wife was such that affiant was required to be in constant attendance upon her to the neglect of his office, and in addition affiant was himself taken ill on April 25, 1935, and confined to his home under doctor's orders and call, to May 6, 1935. During the period from the adjournment of the legislature to and including May 15, 1935, the date of being served with a copy of the notice of motion to dismiss the appeal, he was unable, for the reasons stated, to properly consider many matters pending in his law office, including the preparation of the record on appeal in this case. His state of mind, coupled with his illness and the serious illness of his wife, caused him to neglect to ask respondent's counsel for additional time. At the time of making the affidavit he had completed the record on appeal and could serve and file the same without delay on any terms the supreme court saw fit to impose.
We have been somewhat in doubt as to whether the foregoing facts show such a case of excusable neglect as ought to invoke the exercise of the discretion of this court.
Appellants were in default after March 18. The attorney for the appellant Merritt had enjoyed the indulgence of respondent's counsel in the form of oral extensions for some time before, but this ought not to have lulled him into the belief that continued indulgence in that respect could be had for the asking. For some time prior to his being notified by the deputy attorney-general on March 29, 1935, of the letter of respondent's counsel that his time extended to March 18 had expired, he seems to have been unaware of the status of his appeal. So far as his affidavit discloses he did not know that his time had been extended -at all from the extension he had been given before the last one contained in the letter, and he made no inquiries about it. After he ascertained that he was in default, in spite of his belief that he could obtain consideration from respondent's counsel, he made no effort to do so. This, he admits, was neglect, but claims it was excusable under the circumstances set forth in his affidavit. His showing of excusable neglect after the legislature adjourned and he returned to Elko on the 31st of March, 1935, on account of the prolonged sickness of his wife, and his own illness, is, we think, sufficient. The only thing which tends to rescue his conduct from inexcusable neglect before that time a,nd after January 20, 1935, so far as his affidavit reveals, aside from the reliance he had on the indulgence of respondent's counsel, is his being occupied with the affairs of state. However, we are satisfied from the showing made that counsel desires in good faith to prosecute the appeal and have concluded to exercise our discretion in favor of a hearing on the merits. Appellant has not been in default for a great period of time, as was the case in Sullivan v. Nevada Industrial Commission, 54 Nev. 301, 14 P. (2d) 262, wherein two years had expired from the perfecting of the appeal from the judgment to the filing of the transcript of the record on appeal. Moreover, we have previously declared it is the policy of the law that cases should be disposed of in this court on their merits whenever possible. Orleans Hornsilver Min. Co. v. Le Champ D'Or F. G. M. Co., 52 Nev. 92, 284 P. 307, 289 P. 805; Brockman v. Ullom, 53 Nev. 287, 299 P. 677.
March 5, 1936.
55 P. (2d) 10.
Our authority for permitting a transcript of the record on appeal to be filed after the time specified in rule 2 is plainly conferred. It will be observed that in establishing it and rule 3 the court has reserved the exercise of discretion in enforcing the former. This is evident from the word "may" employed in the latter. Accordingly, the motion to dismiss the appeal and affirm the judgment is denied, and the motion for an extension of time is allowed. It is further ordered that appellant be given ten days after notice of this decision in which to serve and file the transcript of the record on appeal.