Styris v. Folk

ON MOTION TO DISMISS APPEAL OPINION The appeal in this case was perfected on the 19th day of October 1942. By stipulation the bill of exceptions was settled and allowed January 13, 1943. The transcript on appeal was filed in this court on May 26, 1943, thus there was a failure to comply with the requirements of rule II of this court, which requires the transcript to be filed within thirty days after the appeal has been perfected and the bill of exceptions settled and allowed.

Because of such failure of appellant to file the transcript within the time provided by rule II, respondent has moved to dismiss.

1, 2. The transcript on appeal was filed before the motion to dismiss was noticed or made. By his failure to move to dismiss before the default had been cured by the filing of the transcript on appeal, respondent waived his right to take advantage of the provisions of said rule II. Squires v. Merganthaler Linotype Co.,60 Nev. 62, 99 P.2d 20.

We think the decision in the above cited case is sound and should be adhered to.

The motion to dismiss is denied.

ON THE MERITS March 6, 1944. 146 P.2d 782