Opinion
No. 6482.
January 18, 1932. Rehearing Denied February 12, 1932.
Appeal from the District Court of the United States for the Western District of Texas.
Action between Elliott F. Cowden and another and F.V. Addis and others. From the judgment, the former appeal.
Appeal dismissed.
Before BRYAN, SIBLEY, and WALKER, Circuit Judges.
The citation on appeal in this case was returnable October 31, 1931. Our rule XVI states: "It shall be the duty of the appellant to docket the case and file the record therein with the Clerk of this Court by or before the return day, whether in vacation or term time. But for good cause shown any judge of this court may enlarge the time by or before its expiration, the order of enlargement to be filed with the Clerk of this Court. If the appellant shall fail to comply with this rule the appellee may have the cause docketed and dismissed" upon proceedings provided. Prior to October 31st a Judge of this court extended the time for filing the record to November 30, 1931. After the expiration of this extension, and on December 26, 1931, a judge of the court undertook to make a further extension. The appellees are moving a dismissal of the appeal on the ground that the record cannot now be filed under the rule, and because of a claimed estoppel to prosecute the appeal. The appellant resists dismissal and urges that his delay is excusable because he could not earlier procure funds to print the record. By the wording of the rule, a single judge has not authority to make an extension of time after the expiration of a former extension; therefore the extension of December 26, 1931, is ineffectual, and the appeal subject to be dismissed. The assembled court might waive the rule and permit docketing, in its discretion. But without regard to the disputed matter of estoppel, we think no sufficient cause to disregard the rule is shown. There was no need to print the record before filing it, and an appeal in forma pauperis rather than delay in perfecting the appeal is the remedy in cases of poverty.
Appeal dismissed.