dissenting. A dominant purpose underlay the enactment of Act 555 of 1953 — the desire that the greatest possible number of cases he decided on their merits rather than on technicalities of procedure. To that end procedural obstacles and pitfalls that had accumulated for decades were swept away. In place of innumerable procedural requirements that were jurisdictional in the sense that a misstep was fatal, Act 555 provided a single, simple jurisdictional requirement — the timely filing of a notice of appeal.
By today’s decision the clean slate that was handed to this court has been defaced at the first opportunity. This appeal, as well as others on our docket which will he controlled by the rule announced, is being dismissed without the merits having been reached. This action is taken not because the litigants failed to file their notice of appeal, hut because they neglected to take another step within ninety days after the only essential requirement had been satisfied.
I regard as both illogical and reactionary the majority’s reliance upon Chandler v. State. Illogical in that it is certainly a novel doctrine, contrary to every precedent, to say that in adopting the law of another jurisdiction our legislature does so not with reference to the cases that have construed that very law hut with reference to our cases that have construed entirely different statutes. Reactionary in that Chandler v. State, like too many other cases in the past, went off on a technicality rather than on the merits. If we are to rely upon the existence of old technicalities as a reason for creating new ones, the simplification of appellate procedure is in a bad way.
In this case the trial court, for reasons which it deemed sufficient, undertook to grant an extension of time more than ninety days after the filing of the notice of appeal. Even if the question were whether the trial court had the power to grant the extension, a strong argument could be made in favor of the court’s power. Federal Buie 73 (g), from which § 20 of Act 555 was copied, directs that the order of extension be made within the original period for docketing the appeal. But Buie 73 (g) is mandatory only because Federal Buie 6 expressly provides that the time limitation imposed by Buie 73 (g) cannot be extended. Our legislature adopted Buie 73 (g) but did not adopt the mandatory limitation imposed by Buie 6, from which we can with reason infer that our law is meant to be directory only.
But, as I have intimated, the question is not one of the trial court’s power. Overriding every other provision in Act 555 is this unmistakable provision in § 2: “Failure of the appellant to take any of the further steps [in addition to filing the notice of appeal] to secure the review of the judgment or decree appealed from shall not affect the validity of the appeal, but shall be ground only for such action as the appellate court deems appropriate, which may include dismissal of the appeal.” By this language the legislature put the responsibility for dismissing the appeal squarely upon the members of this court. It will not do to shrug off that responsibility by merely attempting to prove the trial court’s want of power. We are still faced with the question of what action we are to take in the exercise of our own undoubted power.
In my opinion we should be guided by the trial judge’s expression of his belief that an extension of time is warranted. It is the trial judge alone who knows the circumstances firsthand. It is he alone who can interrogate the parties, the attorneys, the reporter, the clerk, or any one else whose conduct may have occasioned the delay. Our own position with respect to these matters is so demonstrably inferior to that of tbe trial judge that I can see no excuse for summarily rejecting his informed opinion. Even if it should be conceded that the trial court is without power to grant an extension of time, his willingness to do so should be the strongest factor in our own deliberations.
To dismiss a case other than on its merits is repugnant to any one’s sense of justice. In Act 555 the legislature did not refer even indirectly to the floods, deaths, riots, and acts of God which the majority have searched for in the case at bar. The requirement of completely unavoidable casualty has been read into the law without, as far as I can see, any basis except a strong reverence for outworn technicalities. This attitude is wholly at variance with the legislature’s undoubted and commendable desire to increase the number of cases decided on substantive rather than adjectival issues. If the new law is to be interpreted in the spirit that motivated its passage, this appeal should be kept on the docket.
Robinson J., joins in this opinion.