In Re Estate of Marshall ( 1945 )

OPINION

BY THE COURT:

Submitted on motion of appellee to dismiss the appeal for two reasons: First, because appellant, Mary M. Von Schmidt, failed to file her assignments of error and briefs in accordance with Rule VII of the rules of this Court; and, second, for failure to file bill of exceptions in the trial court within forty day after the overruling of the motion for new trial.

The motion will be overruled.

Rule VII provides for dismissal for failure to file brief within time fixed, unless good cause is shown why the appeal should not be dismissed.

Sometime since counsel for appellant tendered an entry granting leave to file assignments of error and brief and bill of exceptions, in which we interpolated “if duly filed in the trial court” on or before the first day of December, 1945. This entry has been approved by two members of the Court but has not been spread upon the record because counsel for appellee had objected to this action. Such objection is followed by the motion under consideration.

The spirit of Rule VII is not to penalize a party who has exercised due care in complying with the rule. The Court determined, when it approved the aforementioned entry, that counsel for appellant had complied with §12223-8 GC respecting the preparation and filing in this Court of the transcript of the docket or journal entries and original papers or transcript thereof as are necessary to exhibit the error complained of. The trial court at the time of the approval of the entry extending time for filing of brief had not filed the transcript in this Court. In this situation it is our opinion that it is only fair to appellant that she be given additional time pursuant to the entry within which to file briefs, etc.

It appears that a bill of exceptions may not be filed because the time within which, under the statute, it is required to be filed has elapsed. This alone, however, does not require a dismissal of the appeal as the errors assigned, or some of them, may be exemplified upon-the record independent of the bill.

The motion will, therefore, be overruled and the entry will be journalized which we have heretofore approved granting appellant until December 1, 1945, within which to file her assignment of error and brief.

Exceptions will be saved to counsel for appellee.

HORNBECK, P. J., MILLER and WISEMAN, JJ., concur.