Gerber v. McFarland

OPINION

By THE COURT:

Submitted on motion of appellees to dismiss the appeal for failure of appellants to file assignments of error, brief, and bill of exceptions, and on motion of appellants for an order extending the time within' which to file transcript, assignments of error and brief.

The notice of appeal upon questions of law was filed within time on September 6, 1951. The time within which a bill of exceptions, assignments of error and brief may be filed expired on October 26, 1951, but on that date no filings had been made. The transcript of the docket and journal entries was not filed by appellants, but was filed at the instigation of the appellees on November 21, 1951.

The appeal would not be dismissed for failure to file a bill of exceptions, as no showing is made that a bill would be required to exemplify the errors complained of.

Where the appellant has failed to file assignments of error and brief within the time prescribed by Rule VII, this Court has repeatedly held that the appeal will be dismissed unless “good cause” is shown for an extension of time.

After the time expired appellants filed a motion for extension. However, the motion for extension was not filed until after the motion to dismiss was filed. In the memorandum attached to the motion for extension counsel for appellants recites certain transactions which occurred between the parties and counsel from the inception of the litigation until this date, but these facts fall far short of being “good cause” within the rule. Obstinacy on the part of the appellants or the fact that to prosecute the appeal would entail expense cannot be considered “good cause” for failure to comply with the Rule. Appellants were represented by counsel at all times and no good reason has been presented for not filing assignments of error and brief within rule.

Motion to dismiss for failure to file assignments of error and brief within the time prescribed will be sustained.

Motion of appellants for an extension of time will be overruled.

So ordered.

HORNBECK, PJ, WISEMAN and MILLER, JJ, concur.