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Korok v Lok [1988] MHSC 8; 1 MILR (Rev) 93 (25 February 1988)

1 MILR (Rev.) 93

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.CT. CIVIL NO. 87-08

(High Ct. Civil No. 1987-013)

KIOS KOROK,
Plaintiff-Appellant,

-v-

NEIWAN LOK, et. al.,
Defendants-Appellees.

ORDER DISMISSING APPEAL

FEBRUARY 25, 1988

BURNETT, C.J.

SUMMARY:

An appeal was dismissed because Plaintiff-Appellant did not set forth in the Notice of Appeal "a concise statement of the questions presented by the appeal," as required under Rule 3 of the Appellate Rules of Civil Procedure, and because Appellant did not timely pay the estimated cost of the transcript as required by Rule 16(a).

DIGEST:

1. APPEAL AND ERROR – Dismissal, Grounds for – Failure to Pay Fees and Costs: Failure to timely pay estimated cost of transcript does not affect jurisdiction to hear appeal, but may be grounds for dismissal.

2. APPEAL AND ERROR – Dismissal, Grounds for – Failure to Identify Errors: Failure to include a concise statement of the questions presented, in the notice of appeal, is grounds for dismissal.

Appellee has moved to dismiss the appeal, first for Appellant's failure to make timely payment of the estimated cost of the transcript as required by Appellate Rule 16(a), and for failure of his notice of appeal to set forth a "concise statement of the questions presented by the appeal ...."

On hearing, Appellee asserts that, on January 14, 1988, "the very last day wherein he [sic – Appellant?] had to pay...," he got the reporter a check with instructions not to present it until January 22; when presented on that day the check was dishonored, the account having been closed. He [sic – Appellee?] contends that failure to make timely payment is jurisdictional.

Appellate Rule 6(a) provides that the computation of time is to be controlled by Rule 6 of the Rules of Civil Procedure. It follows, therefore, that service of estimated cost having been made on December 14 (excluded in the computation) the final day for making payment was January 13, 1988 (included in the 30 day calculation).

[1] Appellee is in error in his claim that failure to make payment deprives the court of jurisdiction. Those cases which he cites on this issue relate to timely filing of the notice of appeal, which is universally held to be jurisdictional. Failure to comply with other rules only subjects an Appellant to the possibility of dismissal in the discretion of the Court. Appellate Rule 20(a).

Appellee's position as to the notice of appeal is well taken.

The notice of appeal sets out four "questions presented." The first claims the judgment to be contrary to Marshallese custom, for three reasons.

The first reason (a) is nothing more than a conclusion that the Court erred in not giving him judgment.

Secondly (b), Appellant claims error in "interpretation of Marshallese custom" without specifying what that error is.

The third (c), relates to a stipulation to which defendants were not a party.

The second question again relates to the stipulation, and claims error in its termination, thus ignoring the fact that Appellees were not parties to it, and that the court did give it full effect so long as both stipulating parties still lived.

The third is once more nothing but a conclusion that the court erred in not ruling in Appellant's favor.

[2] As to the final "question," it is again necessary for me to point out that an Appellant has no right to brief and argue issues beyond the notice of appeal. See Appellate Rule 3 which makes clear only that questions included in the notice of appeal will be considered by the Court.

Bearing in mind the circumstances surrounding Appellant's late payment of the transcript, and with reference to what I have said as to the notice of appeal, I conclude that this appeal must be, and it hereby is, DISMISSED.