225 F2d 724 Perry v. United States
225 F.2d 724
Harding PERRY, Appellant,
UNITED STATES of America, Appellee.
United States Court of Appeals Ninth Circuit.
July 18, 1955.
Warren A. Taylor, Fairbanks, Alaska, for appellant.
Theodore F. Stevens, U. S. Atty., George M. Yeager, Asst. U. S. Atty., Fairbanks, Alaska, for appellee.
Before DENMAN, Chief Judge, and HEALY and BONE, Circuit Judges.
This case was dismissed for failure to file briefs on March 9, 1955. It now appears from the affidavit of Perry that he paid $800 to Attorney Warren A. Taylor to conduct his appeal and that he "failed to do anything about the briefs." Taylor has filed an affidavit that Perry had not paid him the $800 and,
"That Perry was notified that we could not continue an appeal without the necessary funds to pay for the transcript, and for the printing of the transcript of record and briefs in the said matter; and we further advised Mr. Perry that the Government would seek to dismiss the appeal if it was not proceeded within a particular time."
Contrary to Taylor's affidavit the record in this case shows that he took the appeal for Perry, had the record of the trial proceedings transcribed, secured for Perry a bond on appeal, stated his points on appeal, designated the record to be printed and that he paid the expense of printing the transcript of the record on appeal which has been printed including the trial transcript. Under our practice a copy of the appeal transcript was sent to Taylor.
So far as concerns the cost of printing the briefs, if Perry was without funds Attorney Taylor should have told Perry that he could move for typewritten briefs. Instead his affidavit shows that Taylor gave Perry this misleading statement of other large costs, though in fact already paid.
We think that in the circumstances we should recall our mandate and set aside our order dismissing the appeal. It is ordered that the mandate be recalled and that our order of March 9, 1955 dismissing the appeal be set aside and that Perry be granted 60 days time within which to file his opening brief.