applying Drake to local rules
How later courts described this case
- applying Drake to local rules
Written by the judges who cited it.
The opinion
Holmes, J., dissenting.
I must dissent from the majority opinion herein. The Rules of Appellate Procedure enable appellate courts throughout the state to promulgate local rules which may assist the court in accommodating its own docket based upon their own particular problems. However, in so adopting the local rules, the meaning and purpose of the Appellate Rules, as adopted by this court, must not be overlooked or abrogated. The Rules of Appellate Procedure, in Rule 31, provide that local rules may be adopted “which are not inconsistent” with such Rules of Appellate Procedure.
It is true that App. R. 3(A) provides that failure to take any step other than the timely filing of the notice of appeal would be ground for such action as the Court of Appeals deems appropriate, “which may include dismissal of the appeal.”
However, emphasis, and deference, should be given to the language of the first portion of such rule which states that “[f]ailure of an appellant to take any step other than the *67 timely filing of a notice of appeal does not affect the validity of the appeal***.”
Although a reasonable use of this local rule may prove to be a great aid in expediting the recognized overwhelmingly burdensome caseload of this Court of Appeals, the enforcement of the ultimate sanction of dismissal, where such statement has not been filed, and where it has not been shown that the appellee had been prejudiced thereby, does not best serve the appellate rights of the public.
I submit that the utilization of this Local Rule 22 and application of the sanction of dismissal thereunder where such rule was inadvertently not followed by the appellant, and where there is no showing of prejudice to the appellee, would provide reason for this court to find an abuse of discretion for a dismissal based solely upon a failure to file such “Civil Appeal Statement.”
I would accordingly reverse the judgment of the Eighth District Court of Appeals.
W. Brown and Dowd, JJ., concur in the foregoing dissenting opinion.