199 P. 1004 | Nev. | 1921
Lead Opinion
By the Court,
The appellants were convicted of a misdemeanor in the Eighth judicial district court. From an order denying a motion for a new trial, and from the j udgment, an appeal has been taken. The transcript on appeal was filed in this court on April 19, 1921.
A motion has been made, argued, and submitted to affirm the order and judgment for failure of appellants to prosecute their appeal. Rule 11, par. 1, of this court provides that within fifteen days after the filing of a transcript on appeal in any case the appellant shall file and serve his points and authorities or brief. Paragraph 3 of said rule provides that a failure of either party to file points and authorities or brief within the time prescribed shall be deemed a waiver by such party of the right to orally argue the case. Section 7299 of the Revised Laws of 1912 provides that—
“Judgment of affirmance may be granted without argument, if the appellant fail to appear.”
On May 11, 1921, appellants obtained an order extending the time for filing their opening brief to June 15. On that date a similar order was entered, extending the time until June 25, when a further extension was granted to June 30. On July 5, after the time had lapsed, an order was obtained extending the time for the filing
“When the appellant fails to appear, we will not grope in darkness in search of some fancied error, in order to show” that the judgment is not sustained by the facts nor supported by the law.
And in State v. Chin Wah, 12 Nev. 118, the court disposed of the case in the following words:
“This is an appeal from a judgment convicting the defendant of a felony. The time allowed the appellant to argue his case having expired without any appearance on his part,, the j udgment is affirmed in obedience to the provisions of the statute. Comp. Laws, 2109.”
Does the fact that counsel for appellants filed a brief after the time allowed therefor and after the notice of motion to affirm the j udgment had been served and filed change the situation? This is the sole question for our determination. Rules relative to the procedure in civil as well as in criminal cases before this court are essential. They are as necessary as are statutes or rules governing the practice in nisi prius courts. Without them no progress could be made in the disposition of the business of the court, except by applying to the court after every move for an order directing the course of procedure, which would be intolerable, as well as cumbersome. The rules which have been adopted are recognized by the court and the bar as applicable to criminal as well as to civil cases. In fact, counsel for appellants,
Counsel generally are liberal in extending the time for the filing of briefs, when circumstances will permit, and this court is more than generous in that regard, as has been shown in this case; but when a right under the rule is insisted upon, it is our plain duty to enforce it. Under the circumstances of this case, we think the right of appellants to file a brief was cut off by the notice of motion for judgment of affirmance. Such construction must be given the rule, or else there can be no such thing as expediting the disposition of matters on appeal in this court, as counsel might not only be very dilatory, hut might trifle with the court and resort to tactics merely for the purpose of delay and annoyance. A brief might be prepared and held in readiness for filing, but be withheld until a motion to dismiss is made, and then rushed in. We cannot countenance a construction of our rule which would make such a practice possible, especially in view of the ease with which extensions may be obtained upon a showing- of good cause.
If authority is needed to sustain our conclusion, we invite attention to the case - of McCabe v. Healey, 139 Cal. 30, 72 Pac. 359, wherein the identical question here presented was involved, the court saying:
“The right of the respondent to have the appeal dismissed must be determined by the facts as they existed at the time the notice of the motion was given, and is not destroyed by the subsequent filing of points and authorities on the part of appellant.”
See, also, Leatherman v. Orange County, 148 Ind. 282, 47 N. E. 458; 3 C. J. 1439, note 3.
While the cases mentioned are civil cases, that can
We do not desire to be understood as indicating that upon a showing of good cause we might not relieve the appellants of their default. Such, it has been said, would be the proper practice. People v. Busby, 113 Cal. 181, 45 Pac. 191. But there is no application for relief based upon such grounds.
Notwithstanding the views expressed, we have given the errors assigned such examination as is justified under the circumstances disclosed, and fail to perceive any prejudicial error in the record. State v. Jorme, 34 Nev. 307, 122 Pac. 483.
For the reasons given, the order and judgment are affirmed.
Rehearing
On Petition for Rehearing
By the Court,
A petition for rehearing has been filed herein.
It is contended, further, that our position, to the effect that the judgment should be affirmed for lack of appearance, is not supported by the cases cited in our opinion, for the reason that “no appearance whatever was made by the appellant” in those cases, while appearance was made in the instant case. Prior to service of notice of motion to dismiss, the only appearance in this case was to ask for further time. This is not an appearance such as is contemplated by the statute. The appearance contemplated by the statute is one wherein it is sought to point out some error committed by the trial court. Prior to the time the right to do so had been cut off, nothing of that nature was done in this case.
Our attention is directed to what is termed the discretionary language of the statute (Rev. Laws, 7299), providing that judgment of affirmance may be granted without argument if appellant fail to appear. There is nothing in said statute to sustain the petition for rehearing. Counsel for appellant obtained several extensions of time in which to file their brief. On the day the last extension was granted they appeared in open court and asked for ten days further time. They were granted five days, whereupon they assured the court that the brief would be filed within the time allowed by the court. They failed to comply with the assurance given the court; in fact, no brief had been filed twenty-three days thereafter, when the state moved'to affirm the judgment.
We do not deem further consideration of the petition necessary. We cannot see that the court was not justified in the order heretofore entered in the case.
The petition is denied.