Alex Novack & Sons v. Hoppin, 4251
| Decision Date | 10 November 1959 |
| Docket Number | No. 4251,4251 |
| Citation | 75 Nev. 475,345 P.2d 769 |
| Parties | ALEX NOVACK & SONS, a California corporation, and Murphy Johnson, Appellants, v. Patricia HOPPIN, widow of William Hoppin, Patrick Hoppin by his mother and guardian ad litem, Patricia Hoppin; Billy Hoppin, by his mother and guardian ad litem, Patricia Hoppin; Carrie Lynn Hoppin, by her mother and guardian ad litem, Patricia Hoppin; and Holly Alice Hoppin, by her mother and guardian ad litem, Patricia Hoppin, Respondents. |
| Court | Nevada Supreme Court |
Goldwater, Singleton, Dickerson & Miles, Las Vegas, for appellant Novack & Sons.
Deaner, Butler, Taylor & Adamson, Las Vegas (Henry Plattner, Los Angeles, Cal., of counsel), for appellant Johnson.
Robert Callister, Las Vegas, Melvin Belli, San Francisco, Cal., c/o Robert Callister, Las Vegas, for respondents.
On the 4th day of May 1959 final judgments based on jury verdicts were entered in the court below in favor of respondents and against appellants. On July 15, 1959 motions to set aside the verdicts and for new trial were denied by a written order. Thereafter, on the same day, July 15, 1959, the corporate appellant served and filed its notice of appeal and on July 20, 1959, the individual appellant did likewise.
On August 3, 1959 appellants, upon application of William Singleton as counsel for defendants (appellants), obtained a written order from the court below extending the time for filing the record on appeal and docketing appeal to October 22, 1959. As to the corporate appellant this was nine days more than the permissible period of extension provided by NRCP 73(g) and it was four days more as to the individual appellant. The corporate appellant docketed the record on appeal with the clerk of this court on October 22, 1959.
On October 28, 1959, pursuant to the request of appellants, an order was made herein that the record on appeal filed by the corporate appellant 'may be used by each and all appellants with the same force and effect as if each of the appellants individually had filed said record on appeal as its or his record on appeal.'
No copy of the record on appeal was furnished counsel for respondents, but they were advised that a copy would be available for their use in the Clark County Law Library or at any other convenient place.
Motion to Dismiss Appeal of Appellant Alex Novack & Sons, a California Corporation.
Under said Rule 73(g), the last day the district court could have allowed for docketing the appeal of the corporate appellant was October 13, 1959. The district court was without authority to extend the period beyond this date. The failure to file the record on appeal within the time allowed by law does not deprive this court of jurisdiction and in case of excusable neglect this court, in the exercise of its discretion, may disregard the late docketing. Garibaldi Bros. Trucking Co. v. Waldren, 72 Nev. 12, 292 P.2d 356.
If this appellant had availed itself of the full 30 days for appeal as allowed by NRCP 73(a) and the trial court had then extended the time for docketing the appeal for the full 90 day period, the appellant would then have had until November 12, 1959 within which to have docketed its appeal.
It appears from the record herein that the order signed by the district court extending the time inadvertently designated the time as October 22 instead of October 12 and that the oversight was not recognized by appellant's counsel until the 21st day of October 1959. No motion to dismiss was filed herein until November 2, 1959, 11 days after the record was docketed.
It further appears that an extension of time within which to docket the appeal had been required because of the inability of the court reporter to prepare the transcript of the testimony prior to October 2, 1959. 1 It appears that this appellant at all times acted in good faith to perfect its appeal. The record fails to show that the respondent has in any way been prejudiced by a failure to docket the appeal on or before October 13, 1959. Under all of these circumstances we feel that the neglect to do so within the time allowable was excusable.
Respondents contend that the appeal should be dismissed because this appellant failed to furnish respondent a copy of the record on appeal as required by NRCP 75.
In Tryba v. Fray, 74 Nev. ----, 330 P.2d 499, 500, we stated:
Since that decision, Rules 75(b) and 75(g) were amended so as to require the furnishing of a copy of the transcript to counsel for each ...
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