Averill v. Lincoln

This is an application by appellants, under rule 53(b) of the Rules on Appeal, for relief from default occasioned by their failure to comply with that provision of rule 7(b) which requires service, as well as filing, of a notice of election to proceed on a settled statement on appeal.

These consolidated actions, seeking removal of a trustee, cancellation of instruments, injunction, damages and other relief, were tried before Judge Benjamin J. Scheinman. The trial covered a period of three months, consuming fifty-six court days. Judgment was entered for plaintiffs on August 20, 1943, just prior…