Fried v. Guiberson

• Decision Date: 29 November 1921
• Docket Number: 1051
• Parties: FRIED v. GUIBERSON
• Court: Wyoming Supreme Court

201 P. 854

28 Wyo. 208

FRIED v. GUIBERSON

No. 1051

Supreme Court of Wyoming

November 29, 1921

ERROR to the District Court, Converse County, HON. RALPH KIMBALL Judge.

Action between Julius Fried and another and S. A. Guiberson, Jr. To the judgment, Julius Fried and another bring error.

Heard on motion to extend the time of plaintiffs in error for filing and serving briefs. No briefs.

Order granted.

W. C Shelton and Maurer & Walker, for plaintiffs in error.

Robert D. Hawley, for defendant in error.

POTTER Chief Justice. BLUME, J., and TIDBALL, District Judge concur.

OPINION

POTTER, Chief Justice.

This cause has been heard upon the motion of plaintiffs in error for an extension of the time for the filing and serving of their brief; said motion having been filed after the time fixed by our rules for filing and serving such brief had expired.

The petition in error was filed in this court on May 13, 1921, and the sixty days from that date allowed by the rules for filing and serving the brief of plaintiffs in error expired on July 12, 1921, there having been no order of the court or a justice thereof before that date extending said time. The motion for extension of time was filed on July 29, 1921, and it states the following as grounds therefor: (1) That after the filing of the petition in error and during the course of the preparation of the brief by W. C. Shelton, the attorney for the plaintiffs in error charged with the duty of the preparation of said brief, he was stricken with a serious illness, confining him to his bed for many days, under the care of a doctor and a nurse, leaving him threatened with nervous prostration, and continuously, during all the period of said 60 days, under the care of a physician and unable to prepare the brief and file the same within the time allowed. (2) That on June 19, 1921, the senior partner of said attorney suffered a stroke of apoplexy and died on June 22, which was a great shock to said counsel and further incapacitated him for work for several weeks. (3) That said attorney, during the week in which the death of his senior partner occurred, consulted the rules of this court and understood them to allow 60 days from the filing of the bill of exceptions and record in this court for the filing and serving of the brief of a plaintiff in error; said misunderstanding of the rules being caused by his illness and mental condition at the time. (4) That an application was in fact made for an extension of time on July 12, 1921, by a telegram to one of the justices of this court.

While the affidavit of said counsel in support of the fourth ground states that the application for extension by said telegram was made on July 12, prior to the expiration of the time for said brief, it should be said, although it is not a matter of record in the cause, that said telegram was sent as a night letter from Los Angeles, California, where counsel aforesaid resides, and was not received by the justice to whom it was addressed until July 13, the day after the expiration of the time for said brief, and too late for an order by said justice extending the time; our rule in that respect providing 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. (Laramie County v. Goshen County, 23 Wyo. 207; 147 P. 621; Laramie County v. Platte County, id. 209; 147 P. 622.)

The other grounds stated in the motion are supported by affidavits of said attorney for plaintiffs in error, two physicians who attended him during his sickness, and another practicing attorney of Los Angeles who maintained an office in connection with him, and they show that during the period allowed for said briefs under the rules the said attorney for plaintiffs in error was incapacitated for work, for the reasons stated in the motion. There are no opposing affidavits. The defendant in error, however, after the filing and before the hearing of said motion for extension of time, filed a motion to dismiss on the ground of the failure of plaintiffs in error to file and serve their brief within the time required by the rule. But although the latter motion was called to the attention of the court it was not submitted at the hearing upon the motion of plaintiffs in error, and has not since been submitted, nor has another motion of the defendant in error to strike the bill of exceptions, filed on July 29, 1921, been submitted.

That the court has power after the expiration of the time for filing and serving briefs to extend the time was settled by the decisions in Phillips v. Brill, 15 Wyo. 521, 90 P. 443, and Whiting v. Straup, 15 Wyo. 530, 90 P 445. It was said in Phillips v. Brill that the rule does not in terms prohibit such action by the court; that its language is affirmative and not negative, expressly permitting an extension before the expiration of the time allowed, and stopping there; that to construe the rule as preventing in any case an extension after the expiration of the time allowed might work in some cases a manifest injustice, and that while the limitation should be quite rigidly enforced, yet, in aid of the very purpose to accomplish which the rule was adopted, that of administering justice, the court should be held upon proper showing to have the power to grant a motion for extension although filed after the expiration of the period within which the brief might have been regularly filed and served. But it was further said that the power should be sparingly exercised, and only in extreme cases to prevent an apparent injustice, and that, in justice to the other party, the reasons for its...