Garibaldi Bros. Trucking Co. v. Waldren

Decision Date19 January 1956
Docket NumberNo. 3899,3899
Citation292 P.2d 356,72 Nev. 12
PartiesGARBALDI BROS. TRUCKING CO., a corporation, and Charles F. Thomas, Appellants, v. Helen WALDREN, Respondent.
CourtNevada Supreme Court

Vargas, Dillon & Bartlett and Springer & McKissick, Reno, for appellants.

Leslie E. Riggins, Reno, for respondent.


Respondent has moved under RULE 73(A) N.R.C.P1. to dismiss the appeal of appellant for untimely filing of the record on appeal, as required by Rule 73(g). 2 The chronology of the pertinent filings, etc., is as follows:

Feb. 5, 1955--Judgment.

Feb. 9, 1955--Notice of judgment.

Feb. 19, 1955--Motion for new trial.

April 1, 1955--Notice of denial of motion for new trial.

May 2, 1955--Notice of appeal and bond on appeal.

June 2, 1955--Clerk's record on appeal certified.

June 11, 1955--Time to file record expires.

June 14, 1955--Supersedeas bond filed.

July 5, 1955--Transcript of proceedings certified by court reporter.

July 5, 1955--District judge's order extending time to July 20 to file record.

July 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 maintain that the delay in filing the record was the result of excusable neglect and have filed sundry affidavits from which the following facts appear: During the second week of May, 1955 Mr. Howard F. McKissick, Jr. was contacted by Mr. John C. Bartlett who stated that by reason of his heavy court calendar he would appreciate help in briefing the case for this court. Mr. McKissick was at the time employed by the firm of Pike & McLaughlin, but advised of his intention to form a new partnership on June 1, 1955 and anticipated that he would have time after that date. On May 12 designation of contents of record on appeal and order for transmittal of original papers to the supreme court were prepared and filed and on May 12 respondent designated two additional items for inclusion in the record. During all of June and the first part of July the court reporters were continually engaged and had a number of transcripts to prepare, in addition to which some of their transcribing machinery had broken down but they reported to attorney Bartlett the probability that the transcript would be prepared in time. After filing the bond on appeal, appellants submitted a net worth statement of the appellants in the thought that under the showing thereof a supersedeas bond might be waived. On June 2 respondent declined to waive a supersedeas and the same was furnished June 14. During the first week in July attorney McKissick learned from the court reporters that the transcript had not been prepared and that the 40-day limitation of the rule had expired. He also learned that attorney Bartlett had been out of town for several weeks and that Bartlett had anticipated either that the complete record would have been prepared and docketed or that attorney McKissick would have obtained an extension. McKissick however, on this his first appeal, thought that the time had not expired or that an extension had been obtained or that, under the California practice, the court reporter, unable to complete the transcript in time, would have obtained the extension. At once, on July 5, as noted, an order extending time for filing the transcript to July 20 was presented to and signed by Judge Maestretti, who expressed his misgivings at the time. On July 8 the record was ready for filing, but attorney McKissick, confronted with the costs of transmission of the extensive record to Carson City, decided to carry the record there personally at the time of meeting a trial engagement in Carson City on July 20, on which date the record was filed. Six days thereafter, on July 26, 1955, respondent filed her motion to dismiss the appeal and gave notice by mail.

The delay above noted from July 8 ...

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5 cases
  • McLean's Estate, In re
    • United States
    • Nevada Supreme Court
    • 23 Agosto 1961
    ...oversight in this regard, and the explanation therefor, we find to be excusable and within the authorities of Garibaldi Bros. Trucking Co. v. Waldren, 72 Nev. 12, 292 P.2d 356; Alex Novack & Sons v. Hoppin, 75 Nev. 475, 345 P.2d 769; and Berto v. Wilson, 73 Nev. 162, 312 P.2d 635, and not w......
  • City of Las Vegas v. International Ass'n of Firefighters, Local No. 1285
    • United States
    • Nevada Supreme Court
    • 19 Mayo 1994
    ...of the record, especially where an appellant can show some good reason for the delay. 3 See, e.g., Garibaldi Bros. v. Waldren, 72 Nev. 12, 15, 292 P.2d 356, 357 (1956); Hotels El Rancho v. Pray, 64 Nev. 22, 25, 176 P.2d 236, 237 (1947). However, where the period of delay has been substantia......
  • Alex Novack & Sons v. Hoppin, 4251
    • United States
    • Nevada Supreme Court
    • 10 Noviembre 1959 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 h......
  • Gaudin Motor Co. v. Prieth, 4149
    • United States
    • Nevada Supreme Court
    • 26 Septiembre 1958
    ... ... all of these circumstances we think the situation is governed by Garibaldi Trucking Co. v. Waldren, 72 Nev. 12, 292 P.2d 356, q. v., rather than by ... ...
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