Boner v. Fall River County Bank

• Decision Date: 28 May 1917
• Docket Number: 899
• Parties: BONER, ET AL., v. FALL RIVER COUNTY BANK
• Court: Wyoming Supreme Court

164 P. 1140

25 Wyo. 88

BONER, ET AL., v. FALL RIVER COUNTY BANK

No. 899

Supreme Court of Wyoming

May 28, 1917

ERROR to District Court, Niobrara County; WILLIAM C. MENTZER Judge.

Action between F. M. Boner and others and the Fall River County Bank. On motion to dismiss proceedings in error by F. M Boner and others. Motion granted, and proceedings dismissed.

Proceedings in error dismissed.

J. E Porter of Crawford, Neb., and John W. Hartwell of Lusk, for plaintiffs in error.

John F. Harkin of Lusk and Wm. B. Ross of Cheyenne, for defendant in error.

BEARD, JUSTICE. POTTER, C. J., concurs. SCOTT, J., did not sit.

OPINION

BEARD, JUSTICE.

This case is before the court on the motion of defendant in error to dismiss the proceedings in error for the reason that no brief was filed by plaintiffs in error within the time required by the rules or at all. The petition in error was filed January 31, 1917, and the motion to dismiss was filed April 16, 1917. Under the rule (Rule 15) plaintiffs in error had sixty days after the filing of the petition in error within which to file their brief. Their time, therefore expired April 1, 1917, and no brief was then or ever has been filed, nor was any extension of time for so doing applied for or granted. In resistance of the motion each of the attorneys for plaintiffs in error has filed an affidavit. Mr. Porter, a non-resident attorney, states in his affidavit that Mr. Hartwell, an attorney at Lusk, in this state, was associated with him in the case from its inception. "That I attended to the preparation of the Bill of Exceptions, and in Mr. Hartwell's absence from Lusk, believing that the time within which to file and docket the case in this court was about to expire, I transmitted the Petition in Error and sent praecipe to the clerk of this court, but omitted to sign Mr. Hartwell's name or his name as signed was not recognized by the clerk, who notified me that the case could not be docketed until a Wyoming attorney appeared for appellant, and that the time for docketing would not expire until June, 1917, I believe it was; I have not the letter referred to, as I sent it to Mr. Hartwell, and I am informed that it has been mislaid or lost. That I immediately communicated with Mr. Hartwell and shortly afterwards saw him personally, and informed him that as I was not familiar with the Wyoming practice, I would expect him to look after the perfecting of the appeal and that he would let me know when it was perfected and when the rule or brief day was. During the months of February and March on different occasions I tried to communicate with Mr. Hartwell by long distance telephone, as to this matter, but was informed that he was out of the city, and I had no knowledge that the appeal was perfected or that the brief time had arrived, and if arrived that briefs were not filed until...