Ford v. Townsend, No. 783

No. 783 | Wyo. | Oct 1, 1914

Lead Opinion

Beard, Justice.

The petition in error in this case was filed February 2, 1914. The brief of plaintiff in error was filed April 3, 1914. On June 9, 1914, defendants in error filed a motion to dismiss the proceedings in error for the reason that no brief on behalf of plaintiff in error had been served upon defendants in error or their attorneys within sixty days after the filing of said petition. Rule 15 (104 Pac. XIII) of this court requires the plaintiff in error to file with the clerk four copies of his brief within sixty days after filing his petition in error, and shall also within that period serve upon or mail to the opposite party, or his attorney of record, one other copy of such brief. And by Rule 21, (104 Pac. XIV) it is provided, that if plaintiff in error has failed to file and serve his brief as required by these rules, the defendant in error may have the cause dismissed. The required number of copies of the brief of plaintiff in error were filed on the last day allowed by the rule; and the excuse for not serving a copy on defendants in error, as stated in an affidavit of counsel, is, that he presented to the clerk five copies of his brief, four of which bear the file mark of April 3, 1914, and the fifth copy he intended to have mailed to defendants in error or their attorneys by the clerk of the court, but by some oversight on his part he failed to request the clerk in mailing the brief to him, to mail the fifth copy to defendants in error; that it was wholly through his mistake and oversight and not from any intention on his part, that the copy of the brief intended for them was not served. It is the duty of the party to see to the service of briefs; and is no part of the duties of the clerk to see that they are served or mailed, and'especially, as in this case, when he was not requested to do so. These rules have .been sustained and enforced by this court in a number of cases where the showing of excuse for the failure to file or serve briefs within the time required by the rule was much stronger than in the present case. (Cook v. National Bank, 13 Wyo. 187" court="Wyo." date_filed="1904-12-31" href="https://app.midpage.ai/document/cook-v-south-omaha-national-bank-6587714?utm_source=webapp" opinion_id="6587714">13 Wyo. 187, 79 Pac. 18; Small v. Savings Bank, 16 Wyo. 126" court="Wyo." date_filed="1907-11-12" href="https://app.midpage.ai/document/small-v-johnson-county-savings-bank-6587846?utm_source=webapp" opinion_id="6587846">16 Wyo. 126, 92 Pac. 289; Grippen v. State, 20 Wyo. 486" court="Wyo." date_filed="1912-07-08" href="https://app.midpage.ai/document/grippen-v-state-6588021?utm_source=webapp" opinion_id="6588021">20 Wyo. 486, 124 Pac. 764, 128 Pac. 622, in which cases the earlier cases are cited.) Plaintiff in error having failed to show sufficient excuse for the failure to serve the brief within the time required by the rule, and there being no waiver of such failure by defendants in error, the motion will have to be granted and the proceedings in error dismissed. It is so ordered.

Proceedings in error dismissed.

Potter, J., concurs. ScoTT, C. J., did not participate in the decision.

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Rehearing

ON PETITION EOR REHEARING ON MOTION TO DISMISS.

Per Curiam.

A petition for a rehearing has been filed in this case in which it is urged that the court erred in granting the motion of defendants in error to dismiss the proceedings in error for the failure of plaintiff in error to file and serve his brief within the time required by the rule of this court. It is contended that as the rule provides that the defendant in error may' have the proceedings in error dismissed for a failure of plaintiff in error to file and serve his brief within the required time, a dismissal is not authorized unless there is a failure to both Me and serve, and as the brief in this caes was filed although not served, it was error to grant the motion. That question was decided in Small v. Savings Bank, 16 Wyo. 126, 92 Pac. 289. It was there held that the rule clearly requires both the serving and filing within the sixty days. Following that decision, a rehearing will have to be denied.

Rehearing denied.