Graham v. Thornton

104 So. 2d 95 | Fla. Dist. Ct. App. | 1958

PER CURIAM.

This cause is now before the court on appellee’s motion to dismiss the appeal' herein for appellant’s failure to file his-brief within the time required.

The Notice of Appeal was filed on February 28, 1958. Under 31 F.S.A. Rule 3.6, subd. j (1), Florida Appellate Rules, the record-on-appeal was due in this court 110 days after the notice of appeal was filed, or by June 18, 1958.

Rule 3.7, subd. a requires that appellant’s main brief be filed and served at least 40 days before the date on which the record-on-appeal is required to be filed in the appellate court. It therefore becomes necessary, absent an extension of time as provided by Rule 3.7, subd. d, F.A.R., that appellant’s brief and appendix be filed and served not later than May 9, 1958. This was not done and appellee filed her motion to dismiss the appeal on May 28, 1958.

After appellee filed her motion to dismiss and prior to the hearing thereon, appellant moved the court for an order, nunc pro tunc, extending the time for filing his brief to June 9, 1958. In support of his motion appellant’s counsel represents that the default was due to a' miscalculation of time on his part. In addition, appellant’s counsel submitted an affidavit by his secretary to the effect that on several occasions during April and May of 1958, the affiant telepnoned the office of the Clerk of the Circuit Court of Duval County and was informed by some unidentified person there that the record herein had not been completed; that on May 15, 1958, she was advised of its completion and thereupon immediately dispatched a check covering the cost of preparation and secured the record. In opposition to appellant’s motion for extension of time, and in support of her motion to dismiss, appellee filed an affidavit by a Deputy Clerk of the Circuit Court of Duval County in which the affiant asserts that the record-on-appeal in this cause was completed on the 24th day of March, 1958; that she, personally, so notified appellant’s counsel on that date; but, that no attempt was' made to obtain it until May 15, 1958. Appellant’s brief was deposited with the Clerk of this court on June 17, 1958, the date on which appellee’s motion was heard. The record has not been filed.

Upon consideration of the foregoing it becomes apparent that appellant has failed to comply with the rules of this court governing the time for filing and serving briefs; that no request for an extension of such time was filed prior to the expiration of the time allowed by the rules; and that no good cause has been shown for the entry of an order of extension at this stage in the proceedings.¹

Accordingly, appellant’s motion to dismiss is hereby granted and the appeal dismissed.

STURGIS, C. J., CARROLL, DONALD, K., and WIGGINTON, JJ., concur.

1 . Eidson v. State, Fla.App.1958, 101 So.2d 831; Farmer v. State, Fla.App.1958, 104 So.2d 94.