Citations
- 431 F.2d 959
Full opinion text
PER CURIAM.
This is a civil proceeding involving both a direct appeal and cross-appeal from the judgment of the district court. The matter comes before us on a motion for an extension of time in which to file the appellants’ appendix and brief; the motion is accompanied by a letter from the district court reporter that she will not be able to complete the transcript for “several months.” We deny leave for such an extension.
There is no showing that the appellant has attempted to invoke Rules 10(c) or (d) of the Federal Rules of Appellate Procedure. Rule 10(c) reads as follows:
“Statement of the Evidence or Proceedings When no Report Was Made or When the Transcript is Unavailable. If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may serve objections or propose amendments thereto within 10 days after service. Thereupon the statement and any objections or proposed amendments shall be submitted to the district court for settlement and approval and as settled and approved shall be included by the clerk of the district court in the record on appeal.” (Emphasis ours.)
Under the circumstances as outlined by appellant, we view the “transcript * * * unavailable.”
Rule 10(d) reads as follows:
“Agreed Statement as the Record on Appeal. In lieu of the record on appeal as defined in subdivision (a) of this rule, the parties may prepare and sign a statement of the case showing how the issues presented by the appeal arose and were decided in the district court and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the issues presented. If the statement conforms to the truth, it, together with such additions as the court may consider necessary fully to present the issues raised by the appeal, shall be approved by the district court and shall then be certified to the court of appeals as the record on appeal and transmitted thereto by the clerk of the district court within the time provided by Rule 11. Copies of the agreed statement may be filed as the appendix required by Rule 30.”
Rule 10(e) supplements the above procedure :
“Correction or Modification