*1 necessary appeal; proper party to this neither a nor appeal; he no of this has interest outcome judgment him; that all issues as was final as tо finally him, appellee Disney, dis- were posed of in the trial court. clerk of this
This motion was filed in the office of the appellee nor 1958. Neither granting oрposed motion. of this manner have opinion the should be are of the motion sustained. We appeal It therefore ordered that Disney appellee be dismissed. Reported in 154 E. 2d N. 122.
Note. — Rooney City Chicago et al. East 19,009. Rehearing May 13, Filed March [No. denied September 9, 1958. Transfer denied 1958. Motion to Recall Denying Mandate and Reconsider Transfer Order dismissed December 1958.] *2 Jay Darlington, Isham, of E. William S. Fowler and Hammond, appellant. City Attorney Cohen, B. of East Cecil formеr Chi- Chicago, Attorney cago, Joseph Meszar, City East Spiess, Platt, Friedlich, Tierney, Brown & Her- Mayer, Joseph Chicago, Illinois, Dan- Friedlich, A. J. bert Stephen Terry, iels, Stipher, Baker & J. Karl W. Indianapolis, counsel, Daniels, of all of Alfred Williamsport, appellees. Ringer, on case was submitted Per Curiam. This 1957, 2-15 the brief was 1, under 29, 1957, appel- 31, the 1957. On October due October to and petition for an extension of time filed lant 1957, including in which December Upon brief. a consideration of such this court concluded, discretion, day in its that a 61 extension long speedy too in the interest of the administra- pending tion of us, business before and on October 30, 1957, extended the time for brief to such including cutting thus down prayed about one-half. Nowhere has the appellant charged timely that he received no notice respect. ordеr court’s in this On neither had filed his brief nor filed an of time to file same and on December the clerk of this following entered order: “No having required been filed time —cаuse is dismissed under 2-15.” The rule referred to reads as follows: “The shall have 30 after sub- brief, mission in which to file his the brief is not filed within the time limited the clerk shall enter *3 dismissing an appeal, order petition the a unless for extension of time is file.” on 27, 1957,
On December we received a motion to extending appellant’s reconsider our order for petition 29, 1957, brief entered his of October grant originally for, to-wit, and to the time asked 31, 30, 1957, 1957. On December we received objections granting appellеes’ the the written of appellant’s the motion to our reconsider order of 30, 1957, and also motion to strike the same 25, January from the files. On we the receivеd appellant’s petition third an extension of time in January which to file and on briefs we re- appellees’ the ceived motion strike said third appellаnt’s the from files. Neither the motion to our reconsider and amend order of October appellant’s subsequent petitions nor the for time objections aрpellees’ thereto have been ruled the and upon. gave no 2-15 the clerk
It is our that Rule authority authority appeal. to dismiss this Whatever dismissing appeаl an without the clerk has particular express of court is order rule as in the first sentence of said contained requires quoted. rule an The heretoforе days from the date of submission within 30 brief within that time the clerk shall is not filed such brief petition then on unless there is a the cause dismiss Obviously of time. the term “within filefor an days the 30 after refers to submission the time limited” concerning nothing time. Had is extensions of delegate clerk to the intended to Court appeal power to file an for fаilure to dismiss orig beyond the extensions the time limited within days in a manner it couldhave worded said rule inal 30 inescapably apparent. The intention as to make such power specific order to dismiss without a clerk limited to a factual situation which is therefore elapsed submission have from the date of appellant’s brief nor a an there is neither file one. After the court has in which to more time an the time for once extended application of Rule 2-15 loses sentence the first specific must be cause order dismissal therefore We order and decree that the the court. dismissing clerk’s order appeal hereby vacated. appellant’s motion leaves determination This *4 extending the order of October 30 to reconsider our appellant’s until December timе for petitions for more time. The first his two granted days appellant expired to the extension of application neither a more with brief nor an supрort appellant’s on file. The in affidavits of the petitions request various convince that a us for more time, filed before would have entirely probability been reasonable in ail would granted why been request have but a such was not satisfactorily explained. filed is not all About we can pleaded out of resрon- make the facts is that the entire briefing sibility case, one, a voluminous rested Jay Darlington counsel and that any he has more business than one man can handle filing timely petition perforce the matter a herein a second of time to wedge impossible to into an overloaded schedule. recognize rеasonable necessary Courts rules as proper performance of their functions and to justice facilitate administration and our Supreme Court has that such rules are obligatory upon dispensed us and cannot be with particular Magnuson Billings in ease. (1899), 152 Ind. 52 N. E. 803. 2-16 elaborates the procedure grounds obtaining an extension of time in requires which to file brief. It that a therefor must filed be at least five before the expiration of the time for briefs, in this case appear by it unless made is affi divit the facts which are the basis then or did not exist were then appli not to the known showing or cant his counsel. No such made the affidavits filed in this cause. On contrary affirmatively appears it that the application probability first for time forecast being Darlington Jay busy trying his counsel a law suit Puerto Rico December of 1957. Under such duty plain it to be circumstances seems of counsel
183 filing timely aof arrange for the another to with plead- subsequent time. A proper аpplication more Darlington’s ing Mr. co-counsel reveals the fact that during was sick and unavailable Mr. William Isham granted day his 30 however, original That, held to application. has been when, here, to no reason there seems be be no excuse properly apply extension of to for an for the failure counsel, duty been except to that had time that whom v. Gould busy delegated, elsewhere. Cline was too App. (1897), N. E. 17 Ind. 47 present O’Neal, under our Winn v. decided in 1957 In held, rules, to an Supreme with reference Court original file extension of time to brief, by time this that: extension of “Such inoperative it obtained court since was was filing alrеady expired had after the time fixed for recognized by the time and the of briefs within recognized jurisdictional cause) is (except for the rule (1957), 236 Ind. Winn v. with court.” O’Neal this еxplain did not 2d 536. While N. E. “except recognized it the term what meant part the rule which refer to that take it to cause” we appear that says: it affidavit is mаde to “Unless not did are the basis the facts which applicant known to the not then or were then exist or his counsel.” grant powerless are conclude that we
Thus we brief. The time to his additional application expired granted upon with first his acquire part any his effort on out nothing us to do there remains time and O’Neal, Winn appeal. As said in but dismiss inoperative. be supra, order would other Appeal dismissed.
Royse, J., concurring part dissenting P. part.
Concurring Opinion. agree P. J. I do not with the Per Curiam Royse, majority of the the Clerk was without authority to provisions dismiss this case under my 2-15 the Rules of the In Court. *6 holding perversion ais of the intent and purpose of this Rule Court. agree
I the case should be dismissed. Reported in 148 N. E. 842. 2d Note. — Randolph, as President et al. v. et Leeman al. 18,796. Rehearing
[No. Filed December denied January 10, 1958. Transfer denied December 1958.]