Cite as Nechiesom v. Irons ,
8 FSM Intrm. 589 (Chk. S. Ct. App. 1998)

[8 FSM Intrm. 589]






Argued:  December 8, 1998
Decided:  December 9, 1998

Hon. Keske S. Marar, Associate Justice, Chuuk State Supreme Court, presiding
Hon. Yoster Carl, Temporary Justice, Chuuk State Supreme Court*
Hon. Midasy O. Aisek, Temporary Justice, Chuuk State Supreme Court**

*Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei
**Directing Attorney, Micronesian Legal Services Corporation, Weno, Chuuk

For the Appellants:     Stephen V. Finnen, Esq.
                       Law Offices of Saimon & Associates
                       P.O. Box 1450
                       Kolonia, Pohnpei FM 96941

For the Appellee:        Hans Wiliander, trial counselor
                       P.O. Box 389
                       Weno, Chuuk FM 96942

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Appeal and Certiorari ) Briefs and Record
     An appeal may be dismissed when the appellant has not ordered a transcript and no certificate has been filed that no transcript would be ordered and the appellee has filed a written motion to dismiss the appeal for appellant's failure to comply with the appellate rules.  Nechiesom v. Irons, 8 FSM Intrm. 589, 590 (Chk. S. Ct. App. 1998).

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[8 FSM Intrm. 590]

KESKE S. MARAR, Associate Justice:
     This is an appeal from decisions of the Trial Division involving a contested election.

     The record in this case indicates that the Appellant filed a notice of appeal on April 16, 1998, which was confirmed by counsel for the Appellant during oral argument.  Counsel for Appellant further stated that no order for a transcript of the testimony was placed with the court reporter at any time thereafter.

     The record is devoid of any certificate to the effect that no transcript of such parts of the proceedings not already on file are to be ordered.

     Appellee has moved the Court by written motion and during oral argument to dismiss the appeal on the grounds that Appellant has failed to comply with the provisions of Rule 10(b)(1), CSSC Rules of Appellate Procedure which state as follows:

Within 10 days after filing the notice of appeal the appellant shall order from the reporter a transcript of such parts of the proceedings not already on file as he deems necessary.  The order shall be in writing and within the same period a copy shall be filed with the clerk of the State Court Trial Division.  If no such parts of the proceedings are to be ordered, within the same period the appellant shall file a certificate to that effect.

     CSSC Rules of Appellate Procedure, including Rule 10, are derived from the corresponding United States Federal Rules and Rules of the FSM Supreme Court.  The decisions and comments of the U.S. Federal Courts, while not totally binding on this Court, such background and supporting notes of the Advisory Committee on Rules of Procedure are helpful in the effective administration of these rules by the Chuuk State Supreme Court.

     When the provisions of Rule 10 were adopted to include the final sentence of subsection (b)(1): "If no such parts of the proceedings are to be ordered, within the same period the appellant shall file a certificate to that effect," the Advisory Committee on Rules made the following observations:

If the appellant does not plan to order a transcript of any of the proceedings, he must file a certificate to that effect.  These requirements make the appellant's steps in readying the appeal a matter of record and give the court notice of requests for transcripts . . . .  They are also the third step in giving the court of appeals some control over the production and transmission of the record.

     The requirement that a certificate be filed is not only for the benefit of the court as indicated above, but is also designed to assist the appellee in the orderly process of the appeal.  Notes of the Advisory Committee on Rules also state as follows:

In the event the appellant orders no transcript, or orders a transcript of less than all the proceedings, the procedure under the proposed amended rule remains substantially as before.  The appellant must serve on the appellee a copy of his order or in the event no order is placed, of the certificate to that effect, and a statement of the issues he intends to present on appeal, and the appellee may thereupon designate additional parts of the transcript to be included, and upon appellant's refusal to order the additional parts, may either order them himself or seek an order requiring the appellant to order them.

[8 FSM Intrm. 591]

     This court adopts the foregoing reasoning of the purpose for requiring that a certificate be filed and we find that the filing of such certificate is a vital and indispensable part of the appellate process.  Failure of the Appellant to file such certificate, if no transcript is ordered, is grounds for dismissal of the appeal.

     Accordingly, for cause shown, we order that this appeal is dismissed.                                                            
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