146 F. 499 | 8th Cir. | 1906
after stating the case as above, delivered the opinion of the court.
Parties to an action may by stipulation waive. rights that are personal to them, hut they cannot without the consent of the court stipulate for the abrogation of those rules that are formulated for its own benefit and are designed to facilitate the proper discharge of its own duties. When rules of the latter character are disregarded it is discretionary with the court whether it will enforce the prescribed penalty and in the absence of a gross abuse of such discretion an order of the court in the premises will be respected on appeal or writ of error.
The rule of the Court of Appeals in the Indian Territory requiring the filing of briefs within stated times is a reasonable one. It. is designed to assist that court in its labors and to facilitate the dispatch of its business; and so of the special order of that court relaxing the rule in this case in definite and specified particulars. Manifestly, if counsel without the consent of the court could dispense with compliance with such rules and orders the speedy and. orderly dispatch of its labors might be.seriously interfered with. The fact that courts generally observe the convenience and desires of counsel as expressed in their stipulations gives rise sometimes to the impression that conformity with the rules of procedure is solely a matter for the determination of the parties litigant. This may be so in some cases but certainly not in all. There is a well-defined line of distinction between those rules that are for the benefit of the court and to aid it in the discharge of its duties and those that are for the benefit of parties litigant. Reynolds v. Lawrence, 15 Cal. 360; Spangler v. San Francisco, 84 Cal. 12, 23 Pac. 1091, 18 Am. St. Rep. 158; Manns, etc., Co. v. Templeton, 149 Ind. 706, 44 N. E. 1108; Lehigh, etc., Co. v. Scallen, 61 Minn. 63, 67, 63 N. W. 245; Gittings v. Baker, 2 Ohio St. 21, 23; Hughes v. Kelly, 2 Va. Dec. 588, 30 S. E. 387; Ealkenberg v. Gorman, 71 Wis. 8, 36 N. W. 599; Moulder v. Kempff, 115 Ind. 459, 17 N. E. 906; Spencer v. McMaster, 3 Wyo. 105, 3 Pac. 798.
The railway company did not file its brief until nearly three years had elapsed after the time fixed therefor by the standing rule and the order of the court. We cannot say, therefore, that in dismissing the appeal the court was not exercising a sound discretion. That a brief was filed shortly before the dismissal cannot alter the case. It is claimed that the delay was with the assent of one of the judges of the court. Assuming this to be true, though it is based on implication, the necessary answer is that it was the court of several members that made the rule and the order and it was the court that enforced them as it was its province to do. These conclusions prevent the. consideration of the questions relating to. the merits of the case.
The order of dismissal is affirmed.