BUSING v. PIERSON (1934)

Respondent moves to dismiss an appeal from an order denying motion to retax costs on the ground that the transcript was not filed within the time required by law. When the motion to dismiss came on for hearing, the transcript had been filed and appellant, by way of affidavit, averred that her delay in completing and filing the transcript was due principally to an attempt to consummate a settlement of the cause and thus obviate the necessity of preparing and filing the documents essential to the appeal. A counter affidavit filed by respondent denies material portions of appellant's showing. In a supplemental affidavit appellant avers that the certificate of the clerk attached to the copy of the notice of motion served on her had to do with an appeal prosecuted by other parties to the litigation. In view of these matters appellant requests that she be relieved of her default and given reasonable time within which to file her opening brief.

When the motion came on to be heard the transcript had been on file for approximately one month. The delay in its filing has not retarded the determination of the appeal. On the showing made we are, therefore, inclined to relieve appellant of her default. Whenever possible we favor the disposition of a cause on its merits.

The motion to dismiss is denied, and appellant is given twenty days within which to file her opening brief, respondent is given twenty days within which to reply thereto, and, if desired, appellant is given ten days within which to file her closing brief.

PER CURIAM.