1 MILR (Rev.) 90

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CIVIL NO. 86-04
(High Ct. Civil No. 1984-053)

JERILONG, et al.,
Plaintiff-Appellants,

-v-

HAZZARD,
Defendant-Appellee.

ORDER DISMISSING APPEAL

FEBRUARY 25, 1988

BURNETT, C.J.

SUMMARY:

An appeal was dismissed for Appellant's failures to set forth a concise statement of the questions presented in the notice of appeal, to file a timely brief and to identify errors not merely going to the weight of the evidence.

DIGEST:

1. APPEAL AND ERROR – Dismissal, Grounds for – Failure to Identify Errors: The notice of appeal must identify the errors claimed.

On January 8, 1988, Appellee moved to dismiss for failure to prosecute the appeal in a timely manner. His motion was heard February 17, 1988.

As of the date of hearing, 218 days had elapsed since the record was certified, and 158 days since expiration of the 60 days allowed by Appellate Rule 18(b). Appellant made the novel argument that his time was tolled by his filing a motion (never presented to me) for extension of time. Obviously this cannot be, and there is nothing in the Appellate Rules to suggest it.

Appellant has, at the least, forfeited his right to file a brief. Appellate Rule 20(a). The Appellate Division of the Trust Territory High Court, under essentially the same rules, while regularly showing leniency in granting extension of time for filing briefs, has not hesitated to dismiss in extreme cases. Thus, in Ngiraked v. Trust Territory of the Pacific Islands, 7 TTR 205 (App. Div., 1974), Appellant had been granted various extension to August 5, 1973, no brief having been filed, the Court, on September 11, 1974, dismissed for failure to prosecute.

And, in Trust Territory of the Pacific Islands v. Bermudes, 7 TTR 230 (App. Div., 1975), 202 days had elapsed since certification of the record with no brief having been filed; the Court dismissed for failure to prosecute.

[1] It is the function of the notice of appeal to give "a concise statement of the questions raised by the appeal ...." Appellate Rule 3. The brief is then to identify where, in the record, those questions arise, how the trial court decided them erroneously, and how the claimed error "substantially prejudiced the rights of the Appellant." Bwanus v. Metsifista, et. al., 7 TTR 248 (App. Div. 1975).

In the absence of a brief from Appellant, the Appellate Court must review the entire record in search of error, a task it is ordinarily unwillingly to undertake.

"The Notice of Appeal shall ... contain a concise statement of the questions presented by the appeal ...." Appellate Rule 3. In many respects Appellant's notice falls short of the required standard; had a timely brief been filed, I might well have overlooked the deficiency.

The first assignment of error suggests that the trial court was unable to understand "imon aje" and "katleb," but does not point to error resulting from such alleged ignorance.

The second assignment is that the court had "limited knowledge" of proceedings before the Traditional Rights Court. There is no claim of error in such proceedings, nor any allegation of error in the High Court resulting from its "limited knowledge."

Third, Appellant suggests that the court's decision resulted from its "inability to understand" some evidence presented by the Appellant. We are not told what error resulted from the court's "inability to understand."

Fourth, Appellant challenges only the weight given one of his exhibits.

Fifth assignment suggests only that the court may have been misled by "opposing counsel's own misleading statement," but there was obviously evidence on the subject, before both the Traditional Rights Court and the High Court.

The final assignment challenges only the weight given the evidence presented by the parties.

A long, unbroken line of decisions makes clear that an appellate court will not re-weigh the evidence. Section 66(2) of the Judiciary Act makes clear that the Supreme Court cannot disturb the findings of fact of the High Court "unless clearly erroneous ...." Here, the various assignments of error do not even refer to the court's Findings of Fact and Conclusions of Law.

For the foregoing reasons, I conclude that Civil Appeal No. 86-04 must be, and it hereby is, DISMISSED.