Opinion
April 23, 1958.
Appeal from the Circuit Court, Dade County, Stanley Milledge, J.
Caldwell, Parker Foster, Tallahassee, and Ward Ward, Miami, for appellants.
Carl A. Hiaasen and McCune, Hiaasen, Kelley Crum, Fort Lauderdale, for appellees.
Appellee has moved to strike the transcript of record filed by appellants herein for failure to include directions to the clerk for preparation of the transcript and failure to serve such directions upon appellees within the time provided for filing assignments of error, under Rule 3.6, subd. d(1) of the Appellate Rules.
Apparently, as appellees contend, appellants have elected to prepare their own record on appeal under Rule 3.6, subd. c, which reads as follows:
"c. Preparation by Appellant. If the appellant elects he may prepare the record-on-appeal. In such event the clerk of the lower court shall be entitled to receive a fee only for verifying an uncertified transcript and certifying and otherwise making said record conform with these rules; and he shall refuse to certify any record that does not comply with said rules."
The certificate of the clerk, which is included in the record before us, states only that the transcript is "a correct transcript of portions of the record * * *" but the index to the transcript shows plainly to the appellees and to us what portions of the record have been included.
If an appellant elects, under Rule 3.6, subd. c, to prepare his own transcript of record on appeal there is no need for him to file directions to the clerk, and as the rules presently read there is no requirement that in such case appellant should designate the portions of the record which he has included and serve a copy of this designation on his adversary. On the other hand, it would be the better practice for appellant to inform appellee, within the time provided for filing assignments of error, as to what portions of the record appellant intends to include, in order that appellee may have time to supplement the record as he may be advised. Accordingly, while there has been no infringement of the rules by appellants in this case, appellees are entitled to an opportunity to supplement the record by preparing, or causing to be prepared, such additional portions as they may desire.
The motion will therefore be denied, but without prejudice to appellees to institute, within 10 days after entry of this order, such action as they may be advised to supplement the record herein.
TERRELL, C.J., and THOMAS, HOBSON, O'CONNELL and BUFORD, JJ., concur.