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Paxton v. Misiuk

Decided: April 10, 1961.

CHARLES PAXTON, PLAINTIFF-APPELLANT,
v.
HENRY MISIUK, DEFENDANT-RESPONDENT



For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Schettino, J.

Schettino

This is a passenger-automobile negligence case which was retried as the result of a reversal ordered by the Appellate Division. 54 N.J. Super. 15 (App. Div. 1959). A judgment was entered October 26, 1959 on a jury verdict for $2,000 in plaintiff's favor. An order, dated November 13, 1959, denying a new trial was filed on November 17, 1959. On December 28, 1959 plaintiff filed a notice of appeal. Defendant moved to dismiss plaintiff's appeal on the ground that plaintiff was guilty of evasions of the rules of appellate procedure by not filing the original transcript, by failing to file a brief and appendix within the prescribed time, by filing an abbreviated appendix and by an untimely deposit of security for costs. The motion to dismiss was granted by the Appellate Division upon the completion of the oral argument. Thereafter, we granted plaintiff's petition for certification. 33 N.J. 115 (1960). By our direction, this appeal was heard on the merits as well as on the appeal from the order of dismissal.

I.

We first consider the appeal from the order of dismissal.

Plaintiff's attorney violated R.R. 1:30-6(c) with respect to the filing of the transcript. The record is not clear as to just what happened. The court reporter states that he was instructed by plaintiff's attorney to prepare an original and copy of the transcript and was advised that if an appeal was to be taken, the original transcript would be returned to the reporter so that he would be able to file it pursuant to the cited rule. Plaintiff's attorney does not so recall the events. Nevertheless, the original and copy were sent to plaintiff's attorney.

R.R. 1:30-6(c) provides in part that if prior to the expiration of the time for appeal, a party requests a transcript of the testimony or of any substantial part or parts thereof, the reporter shall promptly transcribe an original and one first carbon copy thereof, attach his official certificate

to both and then deliver the carbon copy to the party making the request and file the original with the clerk of the trial court. These steps were not taken here. Additionally, this rule provides that if an appeal is thereafter taken, the party to whom the copy of such transcript was delivered shall, upon service of the notice of appeal, file the carbon copy of the testimony, or part or parts thereof, with the clerk of the trial court and simultaneously notify the attorney of every other party of said filing. Again, plaintiff violated the rule for, as stated above, the notice of appeal was filed on December 28, 1959, the briefs and a truncated appendix were filed on March 17, 1960 and the transcript was not filed until March 22, 1960. Plaintiff did not, as of date of motion, March 25, 1960, notify defendant of filing of the transcript.

Plaintiff's counsel explains his failure to have the transcript filed at the time of the notice of appeal by stating that the reporter had omitted to transcribe some three pages of the record. He fails to explain his non-compliance with the notice requirement. Respondent urges that plaintiff's counsel in fact delayed the filing of the transcript in order to extend his time for filing of the brief which in this case, under R.R. 1:7-12(a), would have been 30 days after filing of the notice of appeal had the original and copy of the transcript been filed as directed by R.R. 1:30-6(c). Although, as we have said, the procedure here employed violates the rule, we are inclined to give plaintiff's counsel the benefit of the doubt as to whether he deliberately sought to evade the mandate of the rule.

Plaintiff's attorney also violated R.R. 1:2-10 by not depositing security for costs until March 17, 1960. He explains that he thought no security for costs was required because his client held a judgment for $2,000 from which defendant did not appeal and that he assumed his opponent would consent to a waiver of the deposit as was the practice in their county. The rule calls for the deposit and if counsel believed he should be excused, he should have sought an

agreement from his adversary or a court order. In fact he did post the security prior to receipt of the notice to dismiss.

Lastly, we refer to appellant's violation of appellate rule R.R. 1:7-1(f) which states in part:

"[The] appendix * * * shall contain such parts of the record as are essential to the proper consideration of the issues, and which the appellant desires the court to read, including such portions which the appellant reasonably assumes will be relied ...


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