Summary
noting that the Supreme Court "ordinarily will not decide matters presented to us unless there has previously been transmitted to us so much of the record of the tribunal below as may be necessary to enable us to pass on the question at issue"
Summary of this case from Griggs v. Estate of GriggsOpinion
APPEAL No. 78-97.
APRIL 19, 1979.
Smith Smith, Incorporated, Z. Hershel Smith, Edward M. Botelle, for plaintiff.
Longolucco, Lenihan Orsinger, William J. Gallogy, John R. Payne, Jr., Town Solicitor, for defendants.
This case was heard on the motion calendar on our order to the plaintiff to appear and show cause why its appeal from a Superior Court judgment should not be dismissed for failure to comply with an order of that court to file a bond of $375,000 in cash or by corporate curety pending determination by this court of that appeal.
Because the limited portion of the record of the Superior Court proceedings thus far transmitted to this court does not appear to provide a sufficient context for decision on defendants' motion to dismiss, it seems to us that in the interest of fairness to all parties we should not now finally pass on that motion, but should instead conclude that plaintiff has shown cause why its appeal should not be dismissed. That conclusion is without prejudice, however, to defendants' right to renew their motion to dismiss as well as to plaintiff's right to apply to this court under Sup. Ct. R. 7 for a modification or annulment of the Superior Court's order to post a bond.
The parties are reminded that (1) under our practice we ordinarily will not decide matters presented to us unless there has previously been transmitted to us so much of the record of the tribunal below as may be necessary to enable us to pass on the question at issue; and (2) Sup. Ct. R. 11 (e) provides that:
"If prior to the time the record is transmitted a party desires to make in the Supreme Court a motion for dismissal, for a stay pending appeal, or for any intermediate order, the clerk of the trial court at the request of any party shall transmit to the Supreme Court such parts of the original record as the party shall designate."
The plaintiff having shown sufficient cause, the defendants' motion to dismiss the plaintiff's appeal is denied without prejudice.