Opinion
Docket No. 8110.
February 23, 1932.
MOTIONS to strike the transcript and dismiss the appeal and for diminution of the record. Motion to strike and dismiss denied; motion for diminution granted.
The facts are stated in the opinion of the court.
Hiram T. Kellogg for Appellant.
Arthur Rosenblum and Willebrandt, Harowitz McCloskey for Respondent.
[1] The respondent has made a motion to strike the transcript and to dismiss this appeal on the ground that the transcript was filed more than forty days after the settlement of the bill of exceptions. And it is true that the transcript was sixteen days late, having been filed on October 9, 1931. However, the notice of motion to dismiss was not given or filed until October 29th and for that reason the motion must be denied. A portion of Rule V of the Rules for the Supreme Court and District Courts of Appeal reads as follows: "If the transcript, or the points and authorities, though not filed within the time prescribed, be on file at the time such notice is given, that fact shall be sufficient answer to the motion."
[2] The appellant has also made a motion for diminution of the record, setting up by way of affidavit that the pleadings, findings of fact and conclusions of law as well as the judgment were through inadvertence and mistake omitted from the transcript. Without at this time investigating the merits of the controversy it would seem to be in the interests of justice that a complete record be before us in order that proper disposition may be made of the cause.
Motion to strike denied; motion to dismiss denied; motion for diminution of record granted.
Works, P.J., and Craig, J., concurred.