Anderson v. High , 210 Minn. 613 ( 1941 )

¹ Reported in 297 N.W. 321. Respondent has filed objections in opposition to appellant's motion for additional time within which to file a record and brief. The question presented is whether appellant has made a sufficient showing for the extension.

In this action by a client against her attorney, notice of appeal by the attorney was served and filed November 19, 1940. Under Supreme Court Rule VIII(1) [200 Minn. xxviii], appellant became entitled to 60 days within which to serve and file a record and brief. On January 18, 1941, when this time expired, an extension until March 31, 1941 (72 days) was allowed. The present motion seeks an additional month within which to comply.

From all that appears in support and in opposition to this motion, an insufficient showing for an extension has been made. Appellant's chief claim of unavoidable delay concerns the alleged absence of certain exhibits which were part of the proceedings below. From the affidavit of the deputy clerk in charge of exhibits, it appears that these exhibits were properly filed, indexed, and stored at the conclusion of the trial and that nothing in the records indicates any withdrawal of these exhibits, authorized or unauthorized. The only alleged search made by appellant was through a court reporter who is now absent from the state and has made no affidavit. There is no averment by appellant or his attorney, both practitioners in Duluth, that either asked or requested the clerk for these exhibits.

There being no reason to doubt that these exhibits were in their proper repository at all times following the trial and there being no averment of sufficient or of any effort on part of appellant to ascertain their presence, we are unwilling further to encourage the practice of unnecessary extensions. On authority of Schnedler v. Warren, 209 Minn. 605, 297 N.W. 35, the appeal is dismissed.

So ordered.