Harvey v. Stanolind Oil & Gas Co.

• Decision Date: 05 December 1938
• Docket Number: 2094
• Citation: 84 P.2d 755,53 Wyo. 495
• Parties: HARVEY v. STANOLIND OIL & GAS CO
• Court: Wyoming Supreme Court

84 P.2d 755

53 Wyo. 495

HARVEY v. STANOLIND OIL & GAS CO

No. 2094

Supreme Court of Wyoming

December 5, 1938

Rehearing Denied January 24, 1939, Reported at: 53 Wyo. 495 at 502.

ERROR to the District Court of Natrona County; HARRY P. ILSLEY Judge.

Proceeding under the Workmen's Compensation Act by Charles E Harvey, claimant, opposed by the Stanolind Oil & Gas Company employer. To review an order denying an additional award for permanent total disability, the claimant brings error. On motion to dismiss. Rehearing denied--see 86 P.2d 735.

Motion dismissed.

For the defendant in error, the motion to dismiss was submitted on the brief of Hagens & Wehrli of Casper.

The files in this case show that the plaintiff filed his petition in error with the Clerk on July 9, 1938. Plaintiff in error served his brief on July 30, 1938. Rule 15 of the Supreme Court, as amended November 14, 1933, requires that in compensation cases brought to this court by proceedings in error, plaintiff in error must within 15 days after filing of the petition in error file with the Clerk his briefs and serve one copy on counsel for the opposing party. The rule was not complied with in this case. Rule 21 provides that failure to file and serve briefs as required by the rules is ground for dismissal. The following are only a few of the cases where the rule has been enforced. Roberts v. Shorow, 10 Wyo. 368; Phillips v. Brill, 15 Wyo. 521; Ford v. Townsend, 22 Wyo. 397; Boner v. Fall River Co. Bank, 25 Wyo. 88; Sheehan v. Macy Ditch Co., 12 Wyo. 176; Grippen v. State, 20 Wyo. 486; Lobell v. Stock Oil Co., 21 Wyo. 342; Commissioners v. Board of Commissioners, 23 Wyo. 207; Bank of Cody v. Stout, 24 Wyo. 106; Budd v. Roy, 26 Wyo. 210; Nelson v. Sunset Oil Co., 26 Wyo. 243; State v. Conner, 37 Wyo. 474; Woodruff v. Power Co., 38 Wyo. 70; Inman v. City of Cheyenne, 40 Wyo. 72.

For the plaintiff in error in resistance of the motion to dismiss the cause was submitted on the brief of Fred W. Layman of Casper.

Neither the plaintiff in error or his attorney was aware of the existence of the amendment referred to by the defendant in error, and were unable to secure a copy of said amendment. While this may not excuse the failure to comply with Rule 15, nevertheless it indicates that such omission was entirely unintentional. Our information is that Rule 15 was amended November 14, 1933, by adding the paragraph: "In Workmen's compensation cases brought to this Court by proceedings in error or direct appeal, the plaintiff in error, within 15 days after the filing of the petition in error and the appellant, within 15 days after the filing of the record on appeal in this court shall file with the clerk four copies of his brief and shall also within that period serve upon or mail to the opposite party * * *." This rule is not in harmony with Sec. 124-114, R. S. amended by Section 5 of Chapter 128 of the Laws of Wyoming 1937, relating to the filing of petitions in error and records on appeal, which provides that they must be filed in the Supreme Court within 70 days from the date of the decision or order on motion for a new trial, unless the time be extended by order of court or judge, and fifteen days shall be allowed plaintiff in error thereafter, unless it is construed to mean that the brief of the plaintiff in error must be filed within fifteen days after the time for filing the petition in error has elapsed. No copy of the brief of the plaintiff in error has been served on the Attorney General, the omission also being due to ignorance of the rule. If such rule exists, the plaintiff in error will comply as soon as the information as to the rule is received from the Clerk of the Supreme Court. Authorities cited by defendant in error in support of his motion to dismiss do not decide the particular point involved in view of the fact that the plaintiff in error filed his entire proceedings within less time than allowed or required by the statutes. In view of the foregoing, the plaintiff in error submits that the Motion to Dismiss should be denied.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

This cause arose under the Workmen's Compensation Law of this State. An order of award for temporary total disability made in the district court of Natrona County in favor of the workman was heretofore reviewed by this court at the instance of the employer (Stanolind Oil and Gas Company v. Harvey, 52 Wyo. 349, 75 P.2d 1,) and affirmed. On February 28, 1938, the employee filed another application in the district court aforesaid asking that an additional award be made for permanent total disability from and after May 31, 1937. On this application evidence was received, a hearing was duly had thereon, and an order entered declining to make such an award. The workman has appealed from this order. A motion to dismiss the proceeding here has been filed by the employer on the ground that the employee failed to comply with Rule 15 of this court, as amended November 14, 1933, relative to the filing and service of briefs in Workmen's Compensation cases. The pertinent portion of the rule reads:

"In workmen's compensation cases brought to this court by proceedings in error or direct appeal, the plaintiff in error, within fifteen days after the filing of the petition in error, and the appellant within fifteen days after the filing of the record on appeal, in this court, 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, and, unless it be the Attorney General's brief, also serve upon or mail to the Attorney General, one other copy of such brief; within fifteen days after the expiration of said fifteen days, the defendant in error or the respondent, 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. Immediately upon receipt of a record on appeal, the clerk shall by letter notify the appellant or his attorney of record, and also the Attorney General, of that fact."

It is conceded that the amended rule was not obeyed by the plaintiff in error in this matter, as his petition in error was filed here July 9, 1938, but his brief was not filed in the Clerk's office of this court until August 1, 1938, service thereof being made on defendant in error on July 30, 1938. The only excuse tendered is, First, that neither he nor his counsel knew of the existence of this amendment and that the failure to file and serve his brief properly was unintentional. Secondly, it is insisted that the amendment to Rule 15 above set forth is inconsistent with Section 124-114 W. R. S., 1931, as amended by Section 5 of Chapter 128, Laws of Wyoming, 1937. Neither of these points aid plaintiff in error in avoiding the consequences of non-compliance with the Rule aforesaid, which are plainly set forth in Rule 21 of this court, which so far as pertinent here 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."

So far as the first suggestion in behalf of plaintiff in error is concerned, it is completely answered by what was recently said by this court in the case of In re National Building & Loan Association of America, Starley, State Bank Examiner, et al. v. Wilde, State Examiner, 52 Wyo. 195, 72 P.2d 1113, and prior decisions of this court there reviewed and reaffirmed.

The second contention above mentioned is, we think, conclusively disposed of by the announcement of this court in Shaul v. Colorado Fuel & Iron Co., 46 Wyo. 348, 26 P.2d 639, and the subsequent action of the Wyoming State Legislature presently to be mentioned. The case just referred to was decided November 14, 1933, nearly five years ago. In concluding the opinion therein, the amendment of Rule 15 aforesaid was promulgated, and it was said concerning that amendment that thereafter "parties and counsel in workmen's compensation cases' would "be expected to take cognizance" of it. Since the decision in the Shaul case was rendered there have been no less than three sessions of the Wyoming State Legislature. No alteration of the language of Section 124-114 W. R. S., 1931, in that decision considered, was made at any of these legislative sessions, nor was any statute passed or amended which in any way indicated that the legislative policy of speedy disposition of workmen's compensation cases should be altered or that a different rule than that quoted above should prevail in such cases.

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