3 Wyo. 739 | Wyo. | 1892
The defendant in error, by his attorneys, moved to dismiss the proceedings in error in this cause, for the reason that the plaintiffs in error had failed to file their briefs within 60 days after filing the petition in error, as required by rule 21 of this court, (26 Pac. Rep. xiii.,) and this motion was filed May 16, 1892. The cause was dismissed, but, upon application of the plaintiffs in error, it was reinstated, because the record did not affirmatively show that notice of this motion to dismiss was served upon the plaintiffs in error, and because the application to reinstate, which was verified by the affidavit of the attorney for plaintiffs in error, did show that no service of a notice of such motion was made upon the plaintiffs in error. Cronkhite v. Both-well, 30 Pac. Rep. 492.
The following rules of this court relate to the time for filing briefs, and the consequences of failure to file them within the prescribed time: “Rule 15. Within sixty days after filing his petition in error, the plaintiff in error shall file with the clerk six copies of his brief, and shall, at the same time, serve upon or mail to the opposite party, or his attorney of record, one other copy of such brief; and within forty-five days thereafter the defendant in error shall file with the clerk of the court six copies of his brief, and shall, at the same time, serve upon or mail to the opposite party, or his attorney of record, one other copy of such brief.” “Rule 21. When the plaintiff in error, or party holding the affirmative, has failed to file and serve his brief as required by these rules, the defendant in error, or party holding the negative, may have the cause dismissed, or may submit it, with or without oral argument. When the defendant in error, or party holding the negative, has failed to file and serve his brief as required by these rules, and the brief of the plaintiff in error, or party holding the affirmative, has been duly filed,and served within the time required, the plaintiff in error, or party holding the affirmative, may submit the cause, with or without oral argument, and the other party shall not be heard. A cause will be placed on the trial docket at any time for the purpose of enforcing this rule.” Rule 20 of this court provides that “by consent of parties, or for good cause shown before the expiration of the time allowed, the court, or a justice thereof in vacation, may extend the time for filing briefs. ”
The supreme court of the United States-has rules providing for the filing of briefs before the case is called for argument, and the following provisionis found there, as to the party in default: “When, according to this rule, a plaintiff in error or an appellant is in default, the case may be dismissed on motion; and, when a defendant in error or an appellee is in default, he will not be heard, except on consent of his adversary, and by request of court. ” Paragraph 5, rule 21, 108 U. S. 585, 3 Sup. Ct. Rep. xii. We have been unable to find any case in that court dismissed for failure to file briefs within the time prescribed by the rule, but there are a multitude of cases reported in the appendices to the recent reports dismissing cases for failure to comply with rule 10 (3 Sup. Ct. Rep. viii.) of that court relating to the-printing of records. Rule 16 of that court provides that “where no counsel appears- and no brief has been filed for the plaintiff in error or appellant, when the case is called for trial, the defendant may have the plaintiff called, and the writ of error or appeal dismissed, or may open the record and pray for an affirmance,” 108 U.S. 583, 3 Sup. Ct. Rep. xi. Under this rule, which is more like rule 21 of this court, quoted supra, cases have been dismissed without filing an opinion. Fitton v. Taylor, append. 140 U. S. 680, 11 Sup. Ct. Rep. 1020; Miller v. Edgerton, 140 U. S.
In Oregon, the only authority conferred by statute upon the supreme court for the enactment of rules was that “every court of justice” might “provide for the orderly conduct of proceedings before it.” It was held in that state that a rule prescribing the time within which a motion for a rehearing should be made, vests in thecourt no discretion to grant a rehearing after the time limited by the rule has expired. It was further held that such a rule was not unreasonable or repugnant to law, and was within the legitimate and unquestioned power of thecourt to establish. Coyote G. & S. M. Co. v. Ruble, 9 Or. 121. Says Judge Elliott in his work on Appellate Procedure: “It is evident from the authorities referred to in the preceding paragraphs, and from the principles there stated, that a motion to dismiss must assign some cause or some reason which establishes the claim that the appeal will not lie, or that some step essential to the effectiveness of the appeal has not been taken in the manner and within the time prescribed by the statute or by the rules of practice. It. is not enough to comply with the statutory commands or the common-law requirements, for the rules established by the court must also be complied with or the appeal may be dismissed. Our decisions (those of the Indiana supreme court) have not given such strict effect and force to the rules of the court as the courts elsewhere have done, and it is, perhaps, to be regretted that the court has been so lax in the enforcement of its rules. We venture to say that it is much better and much more satisfactory to strictly and uniformly enforce the rules than to spasmodically relax them, and now and then rigidly enforce them. Our court has enforced the rules respecting the filing of briefs with considerable strictness, but the rules in other respects have not been very strictly enforced. It is, as the authorities to which we have referred very clearly show, not only proper to dismiss an appeal for failure to comply with the rules of the court, but it is a duty. The rules constitute the law, and cannot be disregarded.” Elliott, App. Proc. § 523, and cases there cited. The note to this section quoted states that the rule of the Indiana supreme court requiring briefs to be filed within a fixed period has invariably been enforced, and in some instances where a brief, but not such an one as the rule prescribes, has been filed, the case has been dismissed.
It maybe possible that no statute could take from a court of last resort the power to suspend its rules to prevent injustice, as it seems that the power of such a court to prescribe its own rules is inherent arid necessary to the exercise of the power lodged in the judiciary. It maybe that the legislature has no power broad enough to fetter or control the courts of superior and appellate jurisdiction so as to preclude the exercise of independent judicial discretion or judgment. There might be cases of unavoidable casualty or overwhelming necessity presented where thecourt would be justified in waiving or suspending a rule, even though it is provided that it shall have the binding effect of a statute, but certainly the matters alleged in justification in the affidavit of one of the attorneys for the plaintiffs in error, presented in support of the motion to reinstate, do not constitute a ground for relief.
Ante, 736.
Ante, xlii.
Ante, 73.
Ante, 105.