(concurring and dissenting):
I concur with the conclusion of the majority opinion that the timely payment of the filing fee is a jurisdictional prerequisite to the perfection of an appeal before this Court. However, I dissent from the conclusion of the majority that the district court abused its discretion in finding the neglect of counsel in this case to be “excusable” within the meaning of Rule 73(a), and therefore that Prowswood was not entitled to an extension of time to perfect its appeal.
The majority opinion states that “the standard contemplated by the term ‘excusable neglect’ is universally considered to be a very strict one.” The only cases which support that statement, however, are cases from federal courts. The term “excusable neglect” appears not only in our rules in Rule 73(a), but also in Rule 60(b) providing for the setting aside of judgments (usually default judgments) obtained when a party or his counsel has been guilty of “excusable neglect.” In interpreting Rule 60(b) we have given the district courts wide discretion in determining what constitutes “excusable neglect,” and only in rare cases have we overruled their decisions that have set aside default judgments after finding “excusable neglect.” Warren v. Dixon Ranch, 123 Utah 416, 260 P.2d 741 (1953). I see no reason why the same broad interpretation should not apply to the meaning of “excusable neglect” as used in Rule 73(a).
The majority opinion states “inadvertence or mistake of counsel does not constitute the type of unique or extraordinary *962circumstances contemplated by this strict standard.” That statement imposes a much higher test than we have heretofore required under Rule 60(b). Under the latter rule we have required only reasonable justification or excuse for the defendant’s failure to appear. Mayhew v. Standard Gilsonite Co., 14 Utah 2d 52, 376 P.2d 951 (1962). See also Westinghouse Electric Supply Co. v. Larsen Contractor Inc., Utah, 544 P.2d 876 (1975), where we said only a reasonable excuse need be shown to merit the vacating of a default judgment.
I agree that the payment of the filing fee so that the appeal is properly “filed” is the responsibility of the appellant. However, I think that the trial court, in determining whether the neglect of counsel for Prows-wood was excusable, might well consider the fact that the clerk accepted the filing of the notice of appeal without mentioning the omission of the necessary fee. This silence itself is very unusual1 and compounded the neglect of counsel. That fact, coupled with the fact that counsel later called the clerk’s office and received assurance that the notice of appeal had been filed with no mention being made of the lack of the filing fee, would seem to me to give a basis in reason for concluding that the neglect of counsel was excusable. I have no quarrel with the committee note to Federal Appellate Rule 4(a) to the effect that the committee did not want lawyers to be taking advantage of the extra thirty days as a matter of course, and that it was not meant to cover the usual excuse that the lawyer is too busy. That is not the instant case. Here, counsel for the appellant was not too busy. He filed his notice of appeal well ahead of the original one-month deadline. By oversight he neglected to pay the fee, which ordinarily would be detected by the clerk of the court. Counsel used further diligence in checking with the court to make sure that the appeal was filed and he received that assurance. The diligence, care and effort expended by the appellant in attempting to properly file its appeal bears on whether its neglect of one step should be excused.
I would not disturb the district court’s determination that counsel’s neglect was excusable.
OAKS, J., concurs in the concurring and dissenting opinion of HOWE, J.. U.C.A., 1953, § 21-2-1 requires county officers to collect fees in advance for the use and benefit of the county.