Leatherman v. Board of Commissioners of Orange County

• Decision Date: 24 June 1897
• Docket Number: 18,303
• Citation: 47 N.E. 458,148 Ind. 282
• Parties: Leatherman et al. v. Board of Commissioners of Orange County
• Court: Indiana Supreme Court

47 N.E. 458

148 Ind. 282

Leatherman et al. v. Board of Commissioners of Orange County

No. 18,303

Supreme Court of Indiana

June 24, 1897

From the Orange Circuit Court.

Appeal dismissed.

J. A. Zaring, M. B. Hottel and T. B. Buskirk, for appellants.

L. C. Wright and W. J. Throop, for appellee.

OPINION

Per Curiam.

This appeal was submitted December 11, 1896, and notice issued to the parties.

The record discloses that appellants filed their first brief on February 10, 1897. Rule twenty of this court requires the appellant to file his brief before the expiration of sixty days from the date of submission.

According to the recognized method of computing time under the code, the last day allowed for the filing of appellants' brief, was February 9, 1897, and as this day did not fall upon Sunday, the brief was not filed in time. Schoonover v. Irwin, 58 Ind. 287; Hogue v. McClintock, 76 Ind. 205; Elliott App. Proc., section 449. This rule is mandatory, and in the absence of the written request of the appellee as provided by it, the clerk of this court must dismiss the appeal for the failure of the appellant to file his brief within the time required, and in the event the clerk neglects to discharge this duty, the court will, on its own motion, order the dismissal. The fact that the appellant, before the appeal is dismissed, but after the expiration of the allotted time, has filed a brief, will not serve to rescue the case from the operation of the rule; neither is its requirement subject to be waived by the appellee, except by the method therein provided. Manss Bros. Boot and Shoe Co. v. Templeton (Ind. Sup.), 44 N.E. 1108. For the reason stated, it is ordered by the court that this appeal be and the same is hereby dismissed.