Nettles Grocery Co. v. Frederick Bros.

On Motion to Dismiss Appeal. ROGERS, J. At the instance of the Nettles Grocery Company, Inc., plaintiff, a receiver was appointed for Frederick Bros., Inc., defendant. In due course the receiver sold all the assets of the defunct corporation, and then filed his final account. The account was opposed by the People’s Bank & Trust Compan3r, in liquidation, an ordinary creditor. The court below rendered judgment homologating the account and ordering a distribution of the funds held by the receiver. The judgment was read, signed, and filed on October 8, 1927, and on October 15, 1927, the .opponent, People’s Bank & Trust Company, in liquidation, applied for and obtained an appeal returnable on December 12, 1927. On November 29, 1927, the appellant filed a motion in this court for an extension of time within which to bring up the transcript. In this motion it was alleged that, because of the volume of work in the office of the clerk of the district court, the numerous documentary offerings, and the large record in the case, it would be impossible to complete and file the transcript by the return day. Thereupon this court issued an order granting an extension of 30 days within which to file the transcript. On January 12, 1928, the transcript was lodged in this court, and on the same day the receiver of Frederick Bros., Inc., appellee, moved for the rescission of the order of November 29, 1927, extending the return day, and for the dismissal of the appeal. It is set forth as grounds for the motion that the clerk of the district court was instructed by the appellant not to prepare the transcript until he was directed to do so; that instructions to begin the work were not given until November 28, 1927, at which time it was too late to complete and file the transcript on December 12, 1927, the return day fixed in the order of appeal; that, if the clerk of court had not received the aforesaid instructions from the appellant, the transcript could have been completed and filed prior to the return day; and that the failure to do so is attributable to the appellant. Appellee then in *363 fers and so avers that, if these facts had been brought to the attention of the court, the application for an extension of the return day would have been denied; wherefore he prays that the said order be rescinded and the appeal dismissed. The appellant filed a return to the motion to dismiss its appeal. In this return it admits that the preparation of the transcript was delayed a short time under its instructions in the endeavor to effect a compromise and thereby minimize litigation; that as soon as it ascertained a compromise could not be effected its attorneys instructed the clerk to prepare the transcript; that this was on November 16, 1927, and not on November 29, 1927, as alleged in the motion to dismiss; that on November 24, 1927, its attorneys were advised that the transcript could not be completed by the return day, and they thereupon, under date of November 29, 1927, applied to this court for the extension which was duly granted. The motion to dismiss the appeal as well as the return thereto are supported by the affidavits of parties purporting to have knowledge of the facts. We do not find it necessary to resolve the conflict in the evidence as to the date on which the clerk of court was instructed to .prepare the transcript. If, as contended by the appellee, November 28, 1927, be accepted as correct, nevertheless, our conclusion is that the motion to dismiss cannot prevail. Including the usual 3 days of grace, there remained 18 days within which to do the work. For our own part, we do not see why the transcript, which is before us, in the absence of illness or a great volume of work requiring immediate attention in the clerk’s office, could not have been completed within that delay. We think that the appellant was justified in believing that it could be done, until he was otherwise informed by the certificate of the clerk of court which he used as the basis of his application to this court for an extension of the return day. It does not appear, therefore, that our order granting such extension was improvidently issued. For the reasons assigned, the motion to dismiss the appeal is denied.