Hazen v. James W. Johnson, Inc.

143 So. 2d 350, 1962 Fla. App. LEXIS 3040

• Court: District Court of Appeal of Florida
• Decided: July 18, 1962
• Docket: No. 3091
• Status: Published

Opinion

PER CURIAM.

Appellee James W. Johnson, Inc. moved to dismiss this appeal or in the alternative to strike appellant’s brief or in the alternative to require appellant to furnish the ap-pellee with a copy of the court reporter’s transcribed notes. The record on appeal was prepared and filed with the clerk of the lower court on April 2, 1962. Appellant filed his brief without an appendix and without seasonably furnishing the appellee with a copy of the transcribed notes.

Florida Appellate Rule 3.6, 31 F.S.A., pertains to preparation of the record on appeal. Rule 3.6(j), which sets out the time for performance of the acts with reference to the record, states that service of copies of the reporter’s transcribed notes shall be made within ten days after the original record has been completely prepared and filed with the clerk of the lower court.

The affidavit of appellant’s attorney shows, however, that since the filing of appellee’s motion a copy of the transcribed notes was served on the appellant on March 23, 1962. There being no claim or showing that the appellee was prejudiced in the latter respect and since the notes have in fact been served, thus satisfying appellee’s alternative motion, the motion to dismiss the appeal is denied. On the other hand the appellant’s failure to include an appendix in conjunction with his brief cannot be lightly regarded. The motion to strike appellant’s brief is accordingly granted with leave, however, to file a new brief herein incorporating an appendix with proper references within fifteen days after the entry of this order. Appellant’s oral motion for leave to submit a separate appendix is denied.

KANNER, Acting C. J., and WHITE and SMITH, JJ., concur.