Nicktovich v. Olympic Motor Transit Co.

Tolman, J. Respondent has moved to dismiss this appeal upon the sole ground of the failure to serve and file an abstract of the record in accordance with Rule VI of this court, which was effective as of January 1, 1924. The appellant admits the failure to prepare, serve and file an abstract in accordance with the rule mentioned, and seeks to justify its failure by advancing the argument that this court, by its later adopted rules, covered the whole question of the practice on appeal in this court and those rules, by their silence and the omission of any mention of abstracts of record, in effect, repealed all previous rules and statutes requiring such abstracts to be furnished. We cannot sustain that contention. The rules of January 14,1927, do not, and do not purport to, change, repeal or modify any previously existing rule or statute, except such as are necessarily inconsistent therewith. The act of 1925, (Laws of 1925, Ex. Ses., p. 187, *411 §2; Rem. 1927 Sup., § 13-2), under which, the last mentioned rules were adopted, provides: “When and as the rules of courts herein authorized shall be promulgated all laws in conflict therewith shall be and become of no further force or effect.” The abstract rule of 1921 and the statute, Rem. Comp. Stat., § 1730-1 [P. C. § 7307], are not in conflict with and have never been changed or in any manner affected by anything contained in the rules adopted under the act of 1925, nor has this court ever even considered the subject of such a change. Contrary to appellant’s supposition, this court has found, in a vast majority of cases, that abstracts of the record are fair, sufficient, very helpful to the court and that they “promote the speedy determination of litigation on the merits.” Assuming that appellant has sought a determination of this question in good faith, the motion to dismiss the appeal will be denied upon condition that a proper abstract of the record is prepared, served and filed in this court within twenty days from the filing of this opinion. Motion to dismiss is denied without prejudice to its renewal, if an abstract be not filed as directed. Mitchell, Beals, and Parker, JJ., concur. Fullerton, C. J., concurs in the result.