Fisher v. Driskell

• Decision Date: 05 August 1957
• Docket Number: No. 18944,18944
• Citation: 129 Ind.App. 29,144 N.E.2d 161
• Parties: Roosevelt FISHER, Appellant, v. Mack DRISKELL, Appellee.
• Court: Indiana Appellate Court

Page 161

144 N.E.2d 161

129 Ind.App. 29

Roosevelt FISHER, Appellant, v. Mack DRISKELL, Appellee.

No. 18944.

Appellate Court of Indiana, In Banc.

Aug. 5, 1957.

Griffith, Bates & Hancock, Evansville, for appellant.

Ortmeyer, Bamberger, Ortmeyer & Foreman, Evansville, for appellee.

CRUMPACKER, Chief Judge.

Feeling that no appeal to this court should be dismissed upon purely technical grounds unless ruling precedent constrains us to do so we denied, without comment, the appellee's motion to dismiss. To that ruling Royse, J., dissented in writing during the course of which he sought to make it appear, wholly without relevance to the validity of the ruling, that Bowen, Kelley, Pfaff and Crumpacker, JJ., are presently inconsistent with their past positions on the same question involved herein. That, of course, is not the fact as in every case cited in the dissent a copy of the appellant's brief was served on the appellee after the time for filing the same in the clerk's office had expired, a procedure which, if tolerated, would put the appellant in a position to delay the consideration of an appeal through the simple device of not filing his brief until the last day of his time for doing so and then delaying service of a copy thereof on the appellee for several days or weeks. The penalty for such practice is dismissal of the appeal. James C. Curtis & Co. v. Emmerling 1941, 218 Ind. 172, 31 N.E.2d 57, 986. In the case before us a copy of the appellant's brief was served upon the appellee within the time allowed for filing the same in the clerk's office and nothing done by the appellant could possibly delay a consideration of the appeal. Thus the reason for the rule as announced in the Curtis case is eliminated.

Following the suggestion contained in the dissent the appellee has asked for a rehearing of his motion to dismiss this appeal. His petition is predicated upon two propositions as follows: (1) By the unanimous decision of this and the Supreme Court the appellant must, under penalty of dismissal of his appeal, serve a copy of his brief upon the appellee before, or upon the same day he files said brief with this court and make proof of such service upon the appellee at the time of the filing of said brief pursuant to Rule 2-19; and (2) the bill of exceptions containing the evidence is not in the record and, as all propositions urged for reversal depend upon the consideration of the evidence for determination, there is no question before this court for decision.

In reference to the first proposition the facts are these: The appellant obtained an extension of time to file his brief to November 26, 1956. He filed the brief on November 12, 1956, and served a copy thereof on the appellee on November 26, 1956, and made proof of such service with the clerk of this court on November 28, 1956. We held that this was a sufficient compliance with the rules and such holding is now challenged as being in contravention of the following ruling precedents of the Supreme and Appellate Courts: James C. Curtis & Co. v. Emmerling, supra; Gary Railways Co. v. Kleinknight, 1941, 110 Ind.App. 72, 36 N.E.2d 939; Wright v. Hines, 1945, 116 Ind.App. 150, 62 N.E.2d 884; Hoover v. Shaffer, 1948, 118 Ind.App. 399, 80 N.E.2d 569; Matlaw Corp. v. War Damages Corp., 1953, 123 Ind.App. 593, 112 N.E.2d 233, 112 N.E.2d 868; Coal Operators Casualty Co. v. Randolph, 1955, 125 Ind.App. 364, 122 N.E.2d 737.

We have examined each one of these cases and find that not one of them furnishes a precedent for a ruling on the facts here involved. In each one of them the brief was served upon opposing counsel after the time allowed for the filing of said brief had expired and the appeals were dismissed for that reason and that reason alone. The leading case upon the subject is James C. Curtis Co. v. Emmerling, supra, which explains the reason for the dismissal of appeals when the appellee is not served with a copy of the appellant's brief within the time allowed for filing the same. The court said: 'If it were otherwise, appellant might accomplish a delay in the consideration of an appeal, not contemplated by the rules, by the simple device of filing his brief on time and then withholding service of a copy upon his opponent, since it would be unreasonable to hold that an appellee's time might run against him without his knowledge.' [218 Ind. 172, 31 N.E.2d 58.]

How, may we ask, can the filing of appellant's brief three days before the time of its filing has expired and the service of a copy thereof on the appellee on the last day for such filing, as was done in this case, delay the consideration and disposition of the appeal. Nor does such procedure shorten the appellant's time for filing his answer brief in view of the holding in the Curtis case that 'it would be unreasonable to hold that an appellee's time might run against him without his knowledge.'

It is true that the appellant failed to make proof of service of a copy of his brief on the appellee simultaneously with the filing thereof in the clerk's office. We have searched in vain for a decision dismissing an appeal for that reason alone when as a matter of fact the appellee was furnished with a copy of the appellant's brief within the time allowed for filing the same. In Wright v. Hines, supra, a copy of the appellant's brief was served on the appellee the day after the time allowed for filing thereof has expired. In...