Nicholson v. State

• Decision Date: 23 December 1915
• Docket Number: 804
• Parties: NICHOLSON v. STATE
• Court: Wyoming Supreme Court

153 P. 749

23 Wyo. 482

NICHOLSON v. STATE

No. 804

Supreme Court of Wyoming

December 23, 1915

ERROR to the District Court, Fremont County; HON. WILLIAM C MENTZER, Judge.

Thomas G. Nicholson was convicted of the crime of libel and brings error; heard on motion to dismiss for failing to file briefs within time. Motion denied.

Motion granted.

John J Spriggs, in opposition to the motion.

The motion is untimely. An objection to the filing of plaintiff's brief was waived by the Attorney General. Plaintiff in error was delayed in securing an approval of the bill of exceptions.

Hon. D A. Preston, Attorney General, for the State.

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

OPINION

POTTER, CHIEF JUSTICE.

This is a criminal case brought here on error by the defendant, who was convicted of the crime of libel in the district court in Fremont County. It is now before the court on a motion filed by the Attorney General to dismiss the proceeding in error, on the ground that the brief of plaintiff in error was not filed within the time required by the rules and an order extending such time. The requisite number of copies of the brief were filed December 18, 1914, and the motion to dismiss was filed November 1, 1915. It is conceded that the time for filing the brief had been regularly extended to December 15, 1914. The time was extended to that date by an order dated November 21, 1914; the extension having been granted for the reason stated in the application therefor that the bill of exceptions, although presented, had not been settled and allowed by the district court. Thus the briefs were filed three days after the time granted by said order, and without any further order extending the time having been made or applied for.

It is contended in resisting the motion that the objection as to the time of filing the brief had been waived by the Attorney General, first, by the long delay in moving to dismiss, and, second, by recognizing the brief, long prior to filing the motion, and consenting in writing that it might be considered by the court. It appears that shortly after the brief was filed counsel for the plaintiff in error was served with a notice by the Attorney General that on January 8, 1915, he would present to the court, on behalf of the defendant in error, a motion to dismiss the proceeding in error on the ground that the brief of plaintiff in error had not been filed within the time allowed. This is shown by a copy of the notice and proposed motion attached to and filed as a part of the brief opposing the present motion. It further appears that responding to such notice said counsel for plaintiff in error, on January 7, 1915, filed a so-called protest, calling attention to the fact that the bill of exceptions had not been settled or allowed, and suggesting as a reason excusing the failure to strictly comply with the rules as to filing the brief that counsel was not notified of the granting of the order extending the time until December 15, 1914, or to what date, if any, the time had been extended, and not knowing what action had been taken upon his application, but deeming it his duty to preserve the rights of the plaintiff in error, if possible, he then proceeded to prepare the brief and filed the same, mailing it to the clerk on December 16, 1914, relying upon a future allowance of the bill of exceptions, and trusting that the brief might be received without objection, if not filed within the time that may have been granted.

But the proposed motion mentioned in the notice aforesaid was not presented or filed, nor does any motion or objection to the brief appear to have been filed previous to the filing of the motion now before the court. The bill of exceptions was not allowed until April 12, 1915, and was not filed in this court until May 3, 1915, but the other original papers had been filed here on November 18, 1914. Prior to the allowance and filing of the bill, in a letter dated April 8, 1915, the Attorney General wrote counsel for plaintiff in error as follows: "In reply to your letter of the 3rd instant permit me to state that the case of Nickolson vs. State is still pending in the Supreme Court, where the only papers on file are the original files--your petition in error and brief. If you desire the case submitted on the proceedings so far taken on behalf of the plaintiff in error, I certainly shall make no objection." The writing and sending of that letter is not disputed, and it is here attached to and filed as a part of the brief resisting the present motion.

The failure of a plaintiff in error to file or serve his brief within the time required by the rules does not deprive the court of jurisdiction, but such failure may be waived. (Union Pac. R. Co. v. Grace, 22 Wyo. 234, 137 P 881; Reynolds v. Morton, 22 Wyo. 478, ...