James C. Curtis & Co. v. Emmerling

Decision Date24 February 1941
Docket NumberNo. 27490.,27490.
Citation218 Ind. 172,31 N.E.2d 57
CourtIndiana Supreme Court
PartiesJAMES C. CURTIS & CO. v. EMMERLING et al.

OPINION TEXT STARTS HERE

See 31 N.E.2d 986.

Action on a note by James C. Curtis & Co. against Rose Weis Emmerling and others. From the judgment, plaintiff appeals, and defendants move to dismiss the appeal.

Transferred from Appellate Court December 13, 1940, under Section 4-209, Burns' Ann.St.1933.

Appeal dismissed.

Superseding opinion of Appellate Court, see 25 N.E.2d 1008.Appeal from Circuit Court, Jasper County; Moses Leopold, judge.

Frederick C. Crumpacker, Edwin H. Friedrich, and Frederick C. Crumpacker, Jr., all of Hammond, for appellant.

Galvin, Galvin, & Leeney and Bomberger, Peters & Morthland, all of Hammond, for appellee Blume.

SHAKE, Judge.

The record in this appeal was filed in the office of the clerk and an order of submission entered on September 16, 1939. On October 14th, the appellant filed nine printed copies of its brief, and on October 27th, it presented proof showing that on October 25th it had served a copy of its brief on the appellees. There is a motion to dismiss the appeal for the reason that no proof showing service of a copy of the appellant's brief was made when its brief was filed or within the time allowed for filing the same.

The rules of this court applicable to the case are those adopted June 21, 1937. Rule 16 allowed an appellant 30 days after submission in which to file his brief, and rule 20 provided that: ‘Not less than nine copies of each brief, two of which, if typewritten, shall be ribbon copies, shall be filed with the clerk together with proof of service of a ribbon copy upon opposing party or counsel.’

It is conceded by the appellant that rule 16 is mandatory and jurisdictional, but contended that that part of rule 20 quoted above is merely directory, and that, in any event, it only requires a copy to be served upon the opposing party when the brief is typewritten. In their brief resisting dismissal, counsel for appellant says: ‘In the case at bar there was no reason why appellant's attorneys could not have served opposing counsel with a copy of the printed brief. We did not do so because upon a reading of Rule 16 we did not think it was necessary. * * * When our attention was called to the situation copies of the brief were served on appellees.’

If counsel's present position is correct, there was no necessity for serving appellees with a copy of the appellant's brief after the situation was called to their attention.

The language of rule 20 is awkward, and it has been corrected by rule 2-19, 1940 Revision, but we are of the opinion that it cannot have the interpretation suggested by the appellant. In construing the rule, we must take into account the former practice in respect to matters with which it deals and what was apparently intended to be accomplished by its adoption. Prior to the promulgation of the rules of 1937, an appellee's time for filing his brief began to run from the date of submission and was not affected by the fact that the appellant might file his brief short of the time allowed him. Rule...

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12 cases
  • Guthrie v. Blakely
    • United States
    • Court of Appeals of Indiana
    • January 19, 1956
    ...337, 97 N.E.2d 634; McCague v. New York, etc., R. Co., 1947, 225 Ind. 83, 71 N.E.2d 569, 73 N.E.2d 48; James C. Curtis & Co. v. Emmerling, 1941, 218 Ind. 172, 31 N.E.2d 57, 986; Earl v. State, 1926, 197 Ind. 703, 151 N.E. 3; Magnuson v. Billings, 1899, 152 Ind. 177, 52 N.E. 803; Allmon v. R......
  • Yuhas v. Review Bd. of Indiana Employment Sec. Division
    • United States
    • Court of Appeals of Indiana
    • November 12, 1969
    ...of this state have the force and effect of law and are binding upon the litigants and this court alike. James C. Curtis & Co. v.Emmerling, et al., (1941) 218 Ind. 172, 31 N.E.2d 57, 986. Where, as in this case, the appellant does not comply with, or at least make substantial compliance with......
  • Fisher v. Driskell
    • United States
    • Court of Appeals of Indiana
    • August 5, 1957
    ...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 Following the suggestion contained in the dissent the appellee has asked for a rehearing of his motion to dismiss this appeal. His pet......
  • Stephens v. Review Bd. of Indiana Employment Sec. Division
    • United States
    • Court of Appeals of Indiana
    • March 17, 1965
    ...in dismissal of the appeal. In re Estate of Bauer et al. v. Bauer et al. (1963) 244 Ind. 363, 192 N.E.2d 734; James C. Curtis & Co. v. Emmerling (1941) 218 Ind. 172, 31 N.E.2d 57, 31 N.E.2d 986; Monroe v. Review Bd. of Ind. Emp. Sec. Div. (1963) 135 Ind.App. 257, 193 N.E.2d 260; Dawson v. R......
  • Request a trial to view additional results

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