Cronkhite v. Bothwell

• Decision Date: 11 October 1892
• Parties: CRONKHITE et al. v. BOTHWELL
• Court: Wyoming Supreme Court

31 P. 400

3 Wyo. 739

CRONKHITE et al. v. BOTHWELL

Supreme Court of Wyoming

October 11, 1892 ^[1]

Motion by Albert J. Bothwell to dismiss proceedings in error brought by Aaron H. Cronkhite and others in their cause. For former report, see ante, 736, 30 P. 492. Granted.

Motion granted.

M. B Carpenter and D. H. Craig, for plaintiffs in error.

Baird &amp Churchill, for defendant in error.

GROESBECK C. J. CONAWAY, J., concurs.

OPINION

GROESBECK, C. J.

The defendant in error, by his attorneys, moved to dismiss the proceedings in error in this cause, for the reason that the plaintiffs in error had failed to file their briefs within 60 days after filing the petition in error, as required by rule 21 of this court, (26 P. xiii.,) and this motion was filed May 16, 1892. The cause was dismissed, but, upon application of the plaintiffs in error, it was reinstated, because the record did not affirmatively show that notice of this motion to dismiss was served upon the plaintiffs in error, and because the application to reinstate, which was verified by the affidavit of the attorney for plaintiffs in error, did show that no service of a notice of such motion was made upon the plaintiffs in error. Cronkhite v. Bothwell, 3 Wyo. 736, 30 P. 492. ^[2] Rule 9 of this court ^[3] (26 P. xii.) provides that all motions submitted to the court must be in writing, and notice thereof, except in cases of petitions for a rehearing, shall be served on the adverse party, or his attorney of record, at least one day before the hearing of such motion, and it was for a lack of compliance with this rule that the cause was reinstated on the docket. The defendant in error now files a motion to dismiss for the same reasons as set forth in his first motion; that is, because the plaintiffs in error have not filed, or caused to be filed, with the clerk of this court six copies or any number of copies of their brief in this proceeding within 60 days after filing their petition in error herein, as required by rule 15 of this court, and because the plaintiffs in error have not within 60 days after filing their petition in error herein served or caused to be served, or mailed or caused to be mailed, to the defendant in error, or his attorneys of record, or to either of them, a copy of their brief in this proceeding, as required by said rule 15. This is shown by the files and records of this court, and by the affidavit of one of the attorneys of record for the defendant in error, filed in support of the motion to dismiss. Due proof of the service of notice of this motion upon one of the attorneys for the plaintiffs in error is also shown by affidavit, and such service is not disputed.

The following rules of this court relate to the time for filing briefs, and the consequences of failure to file them within the prescribed time: "Rule 15. Within sixty days after filing his petition in error, the plaintiff in error shall file with the clerk six copies of his brief, and shall, at the same time, serve upon or mail to the opposite party, or his attorney of record, one other copy of such brief; and within forty-five days thereafter the defendant in error shall file with the clerk of the court six copies of his brief, and shall, at the same time, serve upon or mail to the opposite party, or his attorney of record, one other copy of such brief." "Rule 21. When the plaintiff in error, or party holding the affirmative, has failed to file and serve his brief as required by these rules, the defendant in error, or party holding the negative, may have the cause dismissed, or may submit it, with or without oral argument. When the defendant in error, or party holding the negative, has failed to file and serve his brief as required by these rules, and the brief of the plaintiff in error, or party holding the affirmative, has been duly filed, and served within the time required, 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. A cause will be placed on the trial docket at any time for the purpose of enforcing this rule." Rule 20 of this court provides that "by consent of parties, or for good cause shown before the expiration of the time allowed, the court, or a justice thereof in vacation, may extend the time for filing briefs."

It will be seen, therefore, that ample provision has been made for extending the time for filing briefs for good cause, but that the rules are imperative in requiring briefs to be filed within the time prescribed by the rules, when the time is not extended by the court, or by any member thereof in vacation. The application for this extension of time must be made before the expiration of the time fixed by the rule for filing briefs, and no provision is made for such extension thereafter, however satisfactory to the court the reasons may be for extending the time. These rules of our court are provided for by statute. "It shall be the duty of the supreme court, from time to time, to prescribe rules of practice for said court, not inconsistent with the constitution or laws of this state, and, when said rules are adopted by said court, the same shall be as binding upon the court, and the attorneys thereof, and the parties having business therein, as though the same were enactments of the legislature of the state." Sess. Laws Wyo. 1890-91, c. 49, § 4. This statute is, in substance, the statute in force under the territorial regime. The only substantial differences in the territorial statute and the present one are that the former provided for rules to be adopted at the first session, and used the word "promulgated" instead of "adopted." Rev. St. § 826. Under this statute, it has been held that a noncompliance with the rule of the territorial supreme court, requiring printed abstracts of the record to be filed in a certain manner and within a time limited by the rule, was sufficient to warrant the court in dismissing the cause. Halleck v. Bresnahen, (Wyo.) 3 Wyo. 73, 2 P. 537; ^[4] Spencer v. McMaster, (Wyo.) 3 Wyo. 105, 3 P. 798. ^[5] In the former cited case, it was held that the rules of practice of the court were made as binding upon the different courts, and the parties practicing therein, as if they were legislative enactments. As the present rules are likewise made binding by statute upon this court, as well as the attorneys and parties litigant therein, we do not see how we may disregard or suspend them. Independently of statutory regulation, any court of last resort would undoubtedly have the inherent power to prescribe rules for the disposition and dispatch of its business, and possibly such rules might be suspended or a particular case excepted from their operation whenever the purposes of justice might require, such rules being considered as but a means to accomplish, and not to defeat, justice. Pickett v. Wallace, 54 Cal. 147; Symons v. Bunnell, (Cal.) 3 Cal. Unrep. 69, 20 P. 859; Id., 80 Cal. 330, 22 P. 193; People v. Williams, 32 Cal. 280. These cases are based upon certain language used by the supreme court of the United States in the case of U.S. v. Breitling, 61 U.S. 252, 20 HOW 252, 15 L.Ed. 900; but in a later case that court has used the following language as to noncompliance with its rules: "To the proper conduct of the business of this court, rules are necessary, and, having been prescribed, reasonable compliance with them is expected, and must be insisted upon. When they are disregarded, dispensation from the consequences can only be extended where the circumstances furnish adequate excuse. Were this otherwise, our regulations might become more honored in the breach than the observance, and the recognition of due procedure would be seriously weakened and impaired." Green v. Elbert, 137 U.S. 615, 621, 11 S.Ct. 188, 34 L.Ed. 792.

The supreme court of the United States has rules providing for the filing of briefs before the case is called for argument and the following provision is found there, as to the party in default: "When, according to this rule, a plaintiff in error or an appellant is in default, the case may be dismissed on motion; and, when a defendant in error or an appellee is in default, he will not be heard, except on consent of his adversary, and by request of court." Paragraph 5, rule 21, 108 U.S. 585, 3 S.Ct. xii. We have been unable to find any case in that court dismissed for failure to file briefs within the time prescribed by the rule, but there are a multitude of cases reported in the appendices to the recent reports dismissing cases for failure to comply with rule 10 (3 S.Ct. viii.) of that court relating to the printing of records. Rule 16 of that court provides that "where no counsel appears and no brief has been filed for the plaintiff in error or appellant, when the case is called for trial, the defendant may have the plaintiff called, and the writ of error or appeal dismissed, or may open the record and pray for an affirmance." 108 U.S. 583, 3 S.Ct. xi. Under this rule, which is more like rule 21 of this court, quoted supra, cases have been dismissed without filing an opinion. Fitton v. Taylor, append. 140 U.S. 680, 11 S.Ct. 1020, 35 L.Ed. 601; Miller v. Edgerton, 140 U.S. 690, 35 L.Ed. 763, 11 S.Ct. 1024, 11 S.Ct. 1024. There are many cases in the state Reports that doubt or expressly deny the right or power of a court to change or modify its own rules to suit the circumstances of any case. Rules of court have the force of law, and are not less obligatory upon the judges than upon the parties to the action. Courts are clothed with power to prescribe such rules as may be necessary and useful in the exercise of their functions; they ought not to be relaxed or suspended to meet temporary convenience, or to be...