If an appellant fails to comply with Rule 10(b)(3), this Court, in its discretion, can dismiss the appeal. See Beecher v. Smithson, 205 F.2d 113, 113 (9th Cir. 1953) (per curiam); United States v. Gallagher, 151 F.2d 556, 559-60 (9th Cir. 1945). Failure to include the complete record, however, does not deprive us of jurisdiction over the appeal.
Thus, with such a default existing, whether an appeal should be dismissed is a matter of discretion with this court. Hargraves v. Bowden, 217 F.2d 839 (9th Cir. 1954); United States v. Gallagher, 151 F.2d 556, 559 (9th Cir. 1945). The appeal was docketed, and the original clerk's transcript filed November 29, 1965. Within thirty days thereafter (or on or before December 30, 1965), two copies of the record were to be prepared by appellant in accordance with the provisions of paragraphs three to six of Rule 10 (Rules of the Ninth Circuit Court of Appeals).
The failure to comply with the rules "does not affect the validity of the appeal, but is ground for such action as we deem appropriate". United States v. Gallagher, 9 Cir. 1945, 151 F.2d 556, 559. See also Hargraves v. Bowden, 9 Cir. 1954, 217 F.2d 839, 840.
It is true the matter lies in discretion. United States v. Gallagher, 9 Cir., 151 F.2d 556. The attorneys should make an attempt to conform to the rules and not try to improvise new practice.
Therefore, the petition of appellee to dismiss the appeal, heretofore submitted, is granted. See this court's decisions and opinions in: United States v. Gallagher, 9 Cir., 1945, 151 F.2d 556; Markham v. Kallimanis, 9 Cir., 1945, 151 F.2d 145; United States v. Tamotsu Fujisaki, 9 Cir., 1952, 198 F.2d 747. Appeal dismissed.
The failure does not affect the validity of the appeal, but (no remedy being provided in Rule 73) is ground for such action as we deem appropriate, which may include dismissal of the appeal. See subdivision (a) of Rule 73. The action we deem appropriate is dismissal of the appeal. Cf. United States v. Gallagher, 9 Cir., 151 F.2d 556; Tucker Products Corp. v. Helms, 9 Cir., 171 F.2d 126; United States v. Stanton, 9 Cir., 172 F.2d 642; United States v. Krause, 9 Cir., 197 F.2d 329; Fong v. James W. Glover, Ltd., 9 Cir., 197 F.2d 710. Appeal dismissed.
See Rule 11 of the Rules of the Supreme Court of the United States. Cf. United States v. Gallagher, 9 Cir., 151 F.2d 556; Tucker Products Corp. v. Helms, 9 Cir., 171 F.2d 126; United States v. Stanton, 9 Cir., 172 F.2d 642; United States v. Krause, 9 Cir., 197 F.2d 329. Appeal dismissed.
See Rule 73(a) of the Federal Rules of Civil Procedure. The action we deem appropriate is dismissal of the appeal. Cf. United States v. Gallagher, 9 Cir., 151 F.2d 556; Tucker Products Corp. v. Helms, 9 Cir., 171 F.2d 126; United States v. Stanton, 9 Cir., 172 F.2d 642. Appeal dismissed.
See Rule 73(a). Cf. United States v. Gallagher, 9 Cir., 151 F.2d 556. Appeals dismissed.
Rule 2 of the Federal Rules of Civil Procedure declares: ‘ There shall be one form of action to be known as ‘ civil action’ .' The notes to Rule 2 explain: ‘ Reference to actions at law or suits in equity in all statutes should now be treated as referring to the civil action prescribed in these rules.’ 28 U.S.C.A. § 723c notes following Rule 2 (1941); and see United States v. Sherwood, 1941, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058; United States v. Gallagher, 9 Cir., 1945, 151 F.2d 556; 48 Stat. 1064 (1934), 28 U.S.C. § 723c (1946). As amended upon revision ‘ to conform to Rule 2’, 28 U.S.C.A. § 1346(a)(2) now reads: ‘ The district courts shall have original jurisdiction, concurrent with the Court of Claims, of * * * any * * * civil action * * * against the United States, not exceeding $10,0000 in amount, founded * * * upon any express or implied contract with the United States * * *.’ And the Supreme Court has recently held that the phrase ‘ any civil action’ used in the revision of Title 28 ‘ means what it says.’