295 F2d 535 Cunningham v. United States

295 F.2d 535

William Carl CUNNINGHAM et ux., and Glenn A. Price et ux., Appellants,
UNITED STATES of America, Appellee.

No. 17049.

United States Court of Appeals Ninth Circuit.

Oct. 17, 1961.

Greive & Law by R. R. Bob Greive and Roderick D. Dimoff, Seattle, Wash., for appellants.

C. A. Muecke, U.S. Atty. and Sheldon Green, Sp. Asst. to U.S. Atty., Phoenix, Ariz., for appellee.

Before CHAMBERS, HAMLIN and MERRILL, Circuit Judges.


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The order of dismissal and the order denying motion to vacate the dismissal are affirmed.


We have here a situation where the Court in its discretion might have granted the motion to vacate. But it did not. And, we cannot say it was an abuse of discretion not to do so. The trial court was entitled to regard the affidavits of the parties plaintiff as implausible, or as not actually reaching the crucial point of why the plaintiffs did not show up at the time appointed for the trial of their cases when the cases were dismissed.


The appellants have sought to strike certain matter dehors the official record which the appellee imported into its brief. We do not grant the motion to strike simply because we have ignored improper statements and the improperly incorporated 'unofficial' exhibit contained in the brief.


Counsel on both sides owe the public, their profession and themselves something better than their briefs filed here. Appellants cut the first wound with an attack on the trial judge. Appellee does not meet the charge with decorum, but instead uses the appellants' transgressions as license to chink up the record with matter outside the official record. Of this, we disapprove.