Wallace v. Wallace

3 Navajo Rptr. 102

• Court: Navajo Nation Court of Appeals
• Decided: August 3, 1982
• Docket: No. A-CV-17-81
• Status: Published

Opinion

ORDER DISMISSING APPEAL

In this case the party opposing the appeal filed a motion to dismiss it on the ground there had not been proper service of the appeal papers by certified mail or personal service in accordance with Rule 6(a) of the Rules of Appellate Procedure. The court ordered counsel for the parties to file affidavits to establish the method of service used, and the appellee filed a renewed motion to dismiss, an affidavit showing the facts and an exhibit consisting of an envelope showing first class mail service.

The appellee correctly cites the case of Dixon v. Johnson to the effect that the Court of Appeals may dismiss an appeal where the notice and service requirement of the rule are not met. 2 Navajo R. 81, 84 (1979).

The court is hesitant to dismiss an appeal for the failure to serve the appeal in the way required where there has been actual acknowledged notice, but this case presents a situation where the appellant did not obey the order to file an affidavit as to notice, thereby admitting the merit of the motion. There is also the matter that there is no proper brief filed by the appellant in support of his appeal.

That being the case, this appeal should be dismissed in accordance with 7 NTC Sec. 801(a).

SO ORDERED.