(dissenting).
I dissent.
A. This Court lacks jurisdiction to decide this case.
(1) Extension of time for appeal was erroneous.
Judgment was entered on November 4, 1974. On December 5, 1974, after the expiration of 30 days, plaintiffs moved to extend the time for appeal pursuant to Rule 3(h) of Rules Governing Appeals. Section 21-12-3(h), N.M.S.A.1953 (Int.Supp.1974). This motion was not served on defendant. The following morning, absent defendant, the trial court granted the motion and extended the time. This order was not served on defendant.
Rule 3(h) provides in part:
Upon a showing of excusable neglect or circumstances beyond the control of the appellant, the district court may extend the time for filing notice of appeal [I] f a request for an extension is made after such time has expired, it shall be made by motion with such notice as the court shall deem appropriate.
The trial court evidently deemed no notice to be appropriate. No hearing was held.
Plaintiffs’ motion claimed Rule 3(h) applied because “plaintiffs tried, before the time for appeal had expired, to notify their attorney that they wished to appeal the judgment herein, but that they were unable to reach him until the time had expired”.
Defendant was denied the right to challenge the extension of time granted plaintiffs to appeal.
Defendant was not notified of the notice of appeal, the order settling the bill of exceptions or appellants’ brief-in-chief filed March 10, 1975. From all that appears of record, defendant first learned of the appeal on or about April 25, 1975 when this Court was notified that defendant would not file an answer brief in this appeal.
The extension of time granted to file a late notice of appeal is void for lack of due process. Notice of appeal, having been filed late, this Court lacks jurisdiction to determine the merits of this appeal.
(2) Defendant is not a party to this appeal.
Rule 4(c) of the Rules Governing Appeals provides:
Not later than the date of filing the notice of appeal any party appealing shall make service of a copy thereof on all other parties whose rights he seeks to have determined on the appeal and promptly file proof of service with the clerk of the district court. A party not so served shall not be a party to the appeal unless brought in by order of the appellate court. . . . [Emphasis added].
This rule is mandatory and compliance with it is essential. In the instant case, the notice of appeal was not served on defendant and proof of service of the notice of appeal was not made. Defendant was not brought in by order of this Court.
Defendant is not a party to this appeal. This Court lacks jurisdiction to render an opinion in this case. The appeal must be dismissed. Hanson v. Zoller, 174 N.W.2d 354 (N.D.1970); Seiffert v. Police Commission of City of Helena, 144 Mont. 52, 394 P.2d 172 (1964); Rainbow Color Film, Inc. v. Milgram Food Stores, Inc., 193 Kan. 168, 392 P.2d 947 (1964); 4A C.J.S. Appeal and Error § 596, n. 36.