Grippen v. State

• Citation: 20 Wyo. 486,124 P. 764
• Decision Date: 08 July 1912
• Docket Number: 693
• Parties: GRIPPEN v. STATE
• Court: United States State Supreme Court of Wyoming

124 P. 764

20 Wyo. 486

GRIPPEN v. STATE

No. 693

Supreme Court of Wyoming

July 8, 1912

Rehearing Denied December 9, 1912, Reported at: 20 Wyo. 486 at 490.

ERROR to the District Court, Weston County; HON. C. H. PARMELEE Judge.

Charles A. Grippen was charged with a felony and convicted, and brought the case to the Supreme Court on error. Heard on motion to dismiss. The material facts are stated in the opinions.

David A. Fakler, Allen G. Fisher and William P. Rooney, for plaintiff in error, contended on petition for rehearing that the attorney general had accepted service of a copy of the brief of plaintiff in error, and thereby waived the delay in filing the same, and also waived the failure to comply with the rules in that respect by the filing of a motion to dismiss the proceeding in error upon the ground that the bill of exceptions was incomplete. Counsel also contended that under the Constitution everyone is entitled to a resort to all the courts of the state without denial, and that a plaintiff in error in a criminal case should not be denied the right to have the record examined and his brief considered when the latter has been filed without objection previous to the service of notice of the filing of a motion to dismiss And further that a brief is not due until a record is complete or agreed upon, and that the rigid enforcement of the rule for dismissal in a felony case, where there has been a failure to file briefs in time, is too severe.

D. A Preston, Attorney General, for the state.

POTTER JUSTICE. BEARD, C. J., and SCOTT, J., concur.

OPINION

POTTER, JUSTICE.

The petition in error in this case was filed August 31, 1911. The journal entries and the original papers, with the exception of the bill of exceptions, were filed October 10, 1911. The bill of exceptions was filed October 28, 1911. The brief of plaintiff in error was not filed until March 18, 1912, and the attorney general, for the state, has moved for a dismissal of the proceedings in error, one of the grounds of said motion being that the brief of the plaintiff in error was not filed within the time required by the rules of this court. The cause has been heard upon that motion.

Rule 15 provides that "within sixty days after filing his petition in error, the plaintiff in error in both civil and criminal causes shall file with the clerk four copies of his brief, and shall also within that period serve upon or mail to the opposite party, or his attorney of record, one other copy of such brief. Rule 16 provides that in all causes, both criminal and civil, in which the state is a party, counsel shall also serve a copy of their brief upon the attorney general. Rule 21 (104 P. xiv) provides: "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." Rule 20 (104 P. xiv) provides for an extension of time for filing briefs, and 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." No application was made in this case for an extension of time for filing the brief of plaintiff in error. On March 9, 1912, the plaintiff in error, by his counsel, filed a motion in ...