Doolittle v. Doolittle, 3769

Decision Date03 November 1953
Docket NumberNo. 3769,3769
Citation70 Nev. 163,262 P.2d 955
PartiesDOOLITTLE v. DOOLITTLE.
CourtNevada Supreme Court

Roger D. Foley, Las Vegas, for appellant.

Milton W. Keefer, Las Vegas, for respondent.

PER CURIAM.

This matter is before us on counter motions of the parties. The proceedings were initiated July 7, 1953 by the filing by appellant of a motion for an order extending the time for filing and docketing the appeal herein. Respondent has now moved to dismiss the appeal upon the ground that the appeal has not been docketed nor the record on appeal filed within the time provided by rule.

Rule 73(g), N.R.C.P. in pertinent part provides: 'The record on appeal as provided for in Rules 75 and 76 shall be filed with the appellate court and the appeal there docketed within 40 days from the date of filing the notice of appeal; * * *. In all cases the district court in its discretion and with or without motion or notice may extend the time for filing the record on appeal and docketing the appeal, if its order for extension is made before the expiration of the period for filing and docketing as originally prescribed or as extended by a previous order; but the district court shall not extend the time to a day more than 90 days from the date of filing the first notice of appeal.'

By an agreed statement of facts it appears that the notice of appeal and bond on appeal were timely filed with the clerk of the court below March 25, 1953; that on that date appellant served and filed a designation of the contents of the record on appeal pursuant to Rule 75(a), N.R.C.P.; that subsequently respondent served and filed a designation of additional matters to be included; 'that the clerk of the district court * * * did not complete preparation of the matters designated by the parties to constitute the record on appeal until the 4th day of June, 1953; * * * That the said record has not as of the date hereof been filed in this court.'

No reason is assigned by appellant for her failure to docket the appeal and file the record within the time prescribed, save the fact that preparation of the record by the clerk of the district court had not been completed. No reason is assigned for her failure to secure an extension of time from the district court within the time provided. In our view there has been complete failure to show excusable neglect.

Our rule 73(g) is substantially identical with rule 73(g) of the Federal Rules of Civil Procedure, 28 U.S.C.A. Under circumstances such as exist here, the federal authorities are overwhelmingly in accord that the appeal must be dismissed. Mulvaney v. Lever Bros. Co., 6 Cir., 158 F.2d 956; Gammill v. Federal Land Bank, 7 Cir., 129 F.2d 501; United States ex rel. Rempas v. Schlotfeldt, 7 Cir., 123 F.2d 109, 111; United States v. Consolidated Freightways, Inc., 9 Cir., 178 F.2d 756; United States v. Stanton, 9 Cir., 172 F.2d 642; National Union of Marine Cooks & Stewards v. Matson Nav. Co., 9 Cir., 171 F.2d 179; Tucker Products Corp. v. Helms, 9 Cir., 171 F.2d 126; Citizens' Protective League, Inc., v. Clark, 85 U.S.App.D.C. 282, 178 F.2d 703; Maghan v. Young, 80 U.S.App.D.C. 395, 154 F.2d 13.

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8 cases
  • McLean's Estate, In re
    • United States
    • Nevada Supreme Court
    • 23 Agosto 1961
    ...v. Hoppin, 75 Nev. 475, 345 P.2d 769; and Berto v. Wilson, 73 Nev. 162, 312 P.2d 635, and not within the holdings of Doolittle v. Doolittle, 70 Nev. 163, 262 P.2d 955; Bank of Nevada v. Drayer-Hanson, Inc., 70 Nev. 416, 270 P.2d 668; Cole v. Cole, 70 Nev. 486, 274 P.2d 358; or McDowell v. D......
  • Garibaldi Bros. Trucking Co. v. Waldren
    • United States
    • Nevada Supreme Court
    • 19 Enero 1956
    ...20, 1955--Record on appeal filed (39 days late). In support of her motion to dismiss the appeal respondent relies on Dolittle v. Doolittle, 70 Nev. 163, 262 P.2d 955, Bank of Nevada v. Drayer-Hanson, Inc., 70 Nev. 416, 270 P.2d 668, and Cole v. Cole, 70 Nev. 486, 274 P.2d 358. Appellants ma......
  • McDowell v. Drake
    • United States
    • Nevada Supreme Court
    • 17 Marzo 1961
    ...75 Nev. 107, 335 P.2d 431; Dreyer v. Dreyer, 74 Nev. 167, 325 P.2d 705; Cole v. Cole, 70 Nev. 486, 274 P.2d 358; Doolittle v. Doolittle, 70 Nev. 163, 262 P.2d 955. Aside from the question of excusable neglect, appellant contends that the court should deny a motion to dismiss where a substan......
  • Landmark Plaza, Inc. v. Deligatti
    • United States
    • Nevada Supreme Court
    • 7 Febrero 1964
    ...court to dismiss the appeal. State ex rel. Department of Highways v. Roman Catholic Bishop, 80 Nev. ----, 388 P.2d 202; Doolittle v. Doolittle, 70 Nev. 163, 262 P.2d 955. NRCP 73(c) provides that a bond for costs on appeal 'shall' be filed with the notice of appeal. From the chronology abov......
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