Opinion
No. 12125.
December 14, 1948. Rehearing Denied January 3, 1949.
Appeal from the United States District Court for the Northern District of California; Louis E. Goodman, Judge.
Action by the Tucker Products Corporation against George S. Helms and others. From the judgment, the plaintiff appeals. On defendants' motion to dismiss the appeal and on plaintiff's motion for order extending time within which to docket the record on appeal.
Motion to dismiss the appeal granted, and motion for an order extending time within which to docket the record on appeal denied.
Gladstein, Andersen, Resner Sawyer and Norman Leonard, all of San Francisco, Cal., for appellant.
J. Emmet Chapman and Frederick C. Dewar, both of San Francisco, Cal., for appellee.
Before DENMAN, Chief Judge, and HEALY and ORR, Circuit Judges.
Defendants and appellees move to dismiss the appeal herein on the ground that the time to file the transcript of record in the district court for docketing the appeal expired on November 10, 1948, ninety days after the filing of the notice of appeal, and the transcript and required filing fee were not tendered the clerk of this court until December 1, 1948.
We agree that the appeal should be dismissed. The contention of plaintiff and appellant is that its attorneys, officers of this court, may engage in other litigation and that this "preoccupation in other matters" relieves them of the preparation and presentation of an affidavit and motion for the extension of time provided in our Rule 13 to be made prior to the expiration of the time fixed by the district court under Rule 73 of the Federal Rules of Civil Procedure, 28 U.S.C.A.
Effective January 1, 1949, this rule has been set aside.
We do not regard such preoccupation in other litigation as a reasonable ground for neglect of the duties of officers of this court. Maghan v. Young, 80 U.S.App.D.C. 395, 154 F.2d 13.
The motion for order extending time within which to docket record on appeal is denied.
The motion to dismiss the appeal is granted.