Schmidt v. Potter ( 1922 )

POELEY, J.

This matter is before the court upon two orders to show cause; one to show cause why the appeal should not be dismissed on the ground that no appeal bond, sufficient to give this court jurisdiction of the appeal, has been filed. By the other order to show cause respondent seeks to have appellants’ brief sticken from the files on the ground that appellants have not complied with the rules of court in preparing their assignments of error, and in preserving their exceptions, and also in failing to make proper references in their printed brief to the settled record.

The matter involved in the order to show cause why the appeal should not be dismissed was disposed of by this court by an order entered herein on the 23d day of August, 1922, whereby appellants were given until the 1st day of September to file an amended bond. It is not claimed that an amended bond was not filed. Therefore said order-to show cause presents nothing for consideration.

The matters involved in the order to show cause why the brief should not be stricken are not jurisdictional and may be considered at this time. Appellants’ counsel admits that he has failed in some respects to comply with the rules of court in the preparation of his brief, but excuses himself on the ground of his inexperience, and asks permission to amend his brief so as to make it, so far as possible, to' conform to the rules. Whether any of the matters set forth in the brief are so presented that they can be considered need not be determined at this time. Under the circumstances of the case and because of counsel’s lack of experience in the preparation of records in 'this court, and in furtherance of justice, such permission will be granted and an order to that effect will be duly entered.

Both orders to> show cause will be dismissed.

GATES, P. J., not sitting.

Note — Reported in 190 N.' W. 319. See American Key-Numbered Digest, Appeal and Error, Key-No. 766, 3 C. J. Sec. 1599, 2 R. C. L.- 176.