200 P. 105 | Wyo. | 1921
This cause is here on error, and has been submitted on two motions filed by defendant in error, the first, a motion filed on May 2, 1921, to strike the petition in error filed on April 1, 1921, and to dismiss the proceeding, and the second, a motion filed on June 7, 1921 to dismiss the proceeding in error for the failure of the plaintiffs in error to file and serve briefs. The first motion was heard on May 9, and had' not been disposed of but remained under advisement at the time of the said filing of the second motion and its submission on June 14; said second motion having been submitted on that date by stipulation without briefs or oral argument.
The only ground stated in the first motion is that the motion for new trial in the court below was filed out of time, and, for that reason, was ordered to be stricken from the files by said court; it being intended thereby to challenge the right of the plaintiffs in error to a hearing in this court on the ground that there was no proper motion for a
That motion, however, must be denied for the reason that the petition in error contains assignments of error which may be considered upon the record proper without a bill of exceptions or a motion for a new trial. (Dobson v. Owens, 5 Wyo. 85; 37 Pac. 471; Bank of Chadron v. Anderson, 7 Wyo. 441; 53 Pac. 280.) The first four assignments of the
No brief having been filed by either of the parties .upon the second motion, we can state the question to be considered only by stating what seems to be presented, and that we undertsand to be a question not heretofore considered by this court, viz., whether, pending a decision upon a motion to dismiss, a plaintiff in error is excused from filing and serving his brief upon the merits within the time fixed by our rules, where such motion has been filed and submitted before the expiration of the time prescribed for such brief. The plaintiffs in error opposed the first motion by oral argument and brief, but did not apply for an extension of the time for their brief upon the merits, which would expire on May 31, 1921, unless extended, or unless the fact that the motion was pending and under advisement would suspend the operation of the rule, or, at least, avoid the penalty provided for not complying with it. And there was no order extending the time nor stipulation filed waiving a failure to comply with the rule.
Under conditions like those in this case, it has been held in one case in another state, the only decision upon the
The same rule which fixes the time for fifing and serving of briefs by a plaintiff in error, or by an appellant in a case brought here by a direct appeal, provided also that within 45 days after the expiration of the 60 days allowed the plaintiff in error or the appellant to file and serve his brief, the defendant in error, or the respondent in a direct appeal, shall file with the clerk four copies of his brief, and also within.that period serve upon the opposite party or his attorney one other copy of such brief. And the rule prescribing the penalty for the failure of a plaintiff in error or an appellant to file and serve his brief, viz., that the defendant in error or the party holding the negative may have the cause dismissed, or may submit it, with or without oral argument, prescribes also the penalty for the failure of the defendant in error or party holding the negative to file and serve his brief, viz., that 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.
But where, after the fifing and serving of briefs by the plaintiff in -error, a motion to dismiss has been filed by defendant in error, and, pending such motion, the defendant
That practice seems to assume that the pendency of the motion is not only a sufficient ground ordinarily for extending the time, but sufficient also, under the conditions stated, to excuse the filing and serving of a brief by the defendant in error or respondent upon the merits until the motion is disposed of. Indeed, in Nicholson v. State, supra, where it was held that a defendant in error desiring to inist upon the right of dismissal, where the brief of plaintiff in error has been filed or served out of time, should be required to act without unreasonable delay in filing his motion, or be understood as waiving the objection, the court said: “A contrary application of the rule, by allowing an unlimited time to raise the objection, would. disregard the reason for requiring the filing and serving of briefs within a specified time, and would permit the defendant in error to postpone the time for filing his brief indefinitely. ’ ’ But that had reference only to an objection for failure to file and serve briefs in time, which, under our deci
We do not think the difference in the situation where the plaintiff in error, or the appellant, has neglected to file or serve his brief upon the merits pending a motion to dismiss, at least when submitted and under advisement, as in this case, before, and at the time of the expiration of the 60-day period, is such as would reasonably require or justify a different application of the rule from that where the neglect is by the defendant in error or the respondent under similar conditions.
There can, of course, be no objection to the filing and serving of briefs on the merits by a defendant in error or respondent on appeal, while his motion to dismiss is pending, and that is, perhaps, the more usual practice, except where the ground of the motion is for failure to file or serve briefs in time or at all, and it results, generally, in the submission of the cause upon the motion and the merits at the same time, thus aiding, no doubt, in the early disposition of the cause. Nor is there objection to the filing of briefs upon the merits by a plaintiff in error or an appellant, notwithstanding a motion is pending to dismiss his appellate proceeding. But, in view of the established practice of granting time to a defendant in error for briefs, after a decision disposing of his motion to dismiss in such a manner as to require him to file and serve a brief upon the merits if desiring to be heard, where the time for such brief would have expired unless excused by the fact that a motion to dismiss had been pending, we thing we ought not to deny the same right to a plaintiff in error whose time for briefs has expired during the pendency of a motion to dismiss his proceeding in-error, of which he has received notice, and especially where it has been submitted before the expiration of his time for briefs prescribed by the rule, and remains under advisement; although we think the better practice would be for either of the parties tn
¥e think it should be held, therefore, that the plaintiff in error was excused, under the circumstances stated, from filing and serving his brief, and that time may now be granted for that purpose. And we are the more inclined to so hold in this case, for the reason that, as the record shows, the judgment complained of was rendered on October 27, 1920, so that if this proceeding should be dismissed upon the second motion, the plaintiff might institute a new proceeding in error within one year from said date, under the statute allowing a proceeding in error to be commenced within one year after the rendition of the judgment. (Comp. Stat. 1920, § 6384; Boner v. Fall River County Bank, supra.)
Each motion to dismiss will be denied, and the plaintiffs in error will be allowed 45 days from the date hereof, or until and including October 10, 1921, within which to file and serve their brief upon the merits, and the defendant in error 45 days thereafter to file and serve opposing briefs.
Motions to Dismiss Denied.