Anne M. Bressler, Appellant, v. Louis Bressler and Melvyn Friedman, Appellees, 266 F.2d 904 (D.C. Cir. 1959)

This case came on for consideration upon appellees' motion to dismiss this appeal, upon appellant's objection, and upon appellees' reply.

It appears that appellant did not order a complete transcript of the testimony before the District Court and did not, at the time a portion of the testimony was filed by her for inclusion in the record on appeal, serve upon the appellees and file with the District Court a concise statement of the points on which she intends to rely on the appeal, as is required by Rule 12(b) of the General Rules of this court, 28 U.S.C.A. See also Rule 75(o), Fed. R. Civ. P., 28 U.S.C.A. As a result appellees were not in a position either to file additional portions of the transcript for inclusion in the record or to apply to the District Court for an order requiring appellant to do so, and are now unable to meet the second of appellant's two points on appeal without additional portions of the testimony.

We now have before us a record which we deem insufficient for disposition of the second point appellant raises on appeal. Failure of the appellant to comply with Rule 12(b) of our General Rules is a ground for such action as we deem appropriate, "which may include dismissal of the appeal." Rule 73(a), Fed. R. Civ. P. In the present case, as appellees have not so far suffered real prejudice, we are of the view that appellant should be allowed to proceed with her appeal, but that unless appellant shall within 30 days supplement the record on appeal with such portions of the transcript of testimony as appellees may designate, appellant will not be permitted to rely upon, and this court will not consider, the second of the two points she states she relies upon.

Accordingly, it is ordered by the court that appellees' motion to dismiss this appeal is denied, and it is

Further ordered by the court that appellant shall be permitted to file within 30 days from the date of this order, a supplemental record on appeal containing such portions of the transcript of testimony as appellees may within five days designate and that if appellant does not file such a supplemental record appellant may not present on appeal the second point contained in her statement of points on appeal.