Hotels El Rancho, Inc. v. Pray
Decision Date | 20 January 1947 |
Docket Number | 3471. |
Parties | HOTELS EL RANCHO, Inc., et al. v. PRAY. |
Court | Nevada Supreme Court |
Appeal from District Court, Eighth Judicial District, Clark County A. S. Henderson, Judge.
Suit by Nevada Pray against Hotels El Rancho, Inc., and others. From an adverse judgment, the defendants appeal. On motion to dismiss appeal.
Motion denied.
Leo A. McNamee and George Rudiak, both of Las Vegas for appellants.
Lewis & Hawkins, of Las Vegas, for respondent.
This is a motion to dismiss an appeal. The motion is based on the ground: (1) That said appellants did not cause to be filed their record on appeal within thirty days after the appeal had been perfected and bill of exceptions had been settled as required by Rule II of this Court. (2) That the said appellants did not cause to be filed their opening brief within fifteen days after the filing of the record on appeal, as required by Rule XI of this Court.
By stipulation the bill of exceptions was settled and allowed on August 23, 1946.
The transcript on appeal was filed in this Court on September 23, 1946. The time for appellants to file their opening brief expired, therefore, on October 8, 1946.
Notice of the presentation of this motion to dismiss was served on the appellants on October 9, 1946, and was filed in this Court on October 14, 1946.
On October 23, 1946 appellants' opening brief was filed.
It appears from the affidavit filed on behalf of the appellants in opposition to the motion:
The transcript on appeal was filed before the motion to dismiss was noticed or made. By her failure to move to dismiss before the default had been cured by the filing of the transcript on appeal, respondent waived her right to take advantage of the provisions of said Rule II. Styris v. Folk, 62 Nev. 208, 139 P.2d 614, 146 P.2d 782; Squires v. Mergenthaler Linotype Co., 60 Nev. 62, 99 P.2d 20. Furthermore, the affidavit shows that the appeal has been taken and presented in good faith, that the delay has not appreciably postponed the hearing of the appeal on its merits, and that the failure to timely file the record on appeal was excusable.
As to the second ground of the motion 'that the said appellants did not cause to be filed their opening brief within fifteen days after the filing of the record on appeal as required by Rule XI of this Court', we feel that the circumstances which occasioned the delay and oversight of counsel were such as to appeal strongly to the discretionary power of the court, and would, without doubt, have justified an order extending the time for filing the opening brief if they had been brought to our attention before the motion to dismiss was made. If so, there is no reason why we may not after the motion relieve the appellants from the consequences of their delay.
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Hotels El Rancho, Inc. v. Pray
...and from an order denying the motion of the remaining defendants for a new trial, they appeal. Judgment and order affirmed. See also 176 P.2d 236. Leo A. McNamee and George Rudiak, both of Vegas, for appellants. Lewis & Hawkins, of Las Vegas, for respondent. HORSEY, Justice. For convenience......
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City of Las Vegas v. International Ass'n of Firefighters, Local No. 1285
...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 substantial, and where no legally sufficient excuse has been shown, w......
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Garibaldi Bros. Trucking Co. v. Waldren
...excusable. There can be no doubt but that an order of extension would, if sought, have been automatically granted. Hotels El Rancho v. Pray, 64 Nev. 22, 176 P.2d 236. The motion to dismiss is denied and appellants are given fifteen days from date within which to serve and file their opening......
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Henry McCleary Timber Co. v. Sewell, 3912
...Squires v. Mergenthaler Linotype Co., 60 Nev. 62, 99 P.2 20; Styris v. Folk, 62 Nev. 208, 130 P.2d 614, 146 P.2d 782; Hotels El Rancho v. Pray, 64 Nev. 22, 176 P.2d 236. Cf. Goodhue v. Shedd, 17 Nev. 140, 30 P. 695; Adams v. Rogers, 31 Nev. 150, 101 P. 317; Padilla v. Mason, 53 Nev. 226, 29......