Phillips v. Brill

• Decision Date: 10 June 1907
• Citation: 90 P. 443,15 Wyo. 521
• Parties: PHILLIPS ET AL. v. BRILL ET AL
• Court: Wyoming Supreme Court

90 P. 443

15 Wyo. 521

PHILLIPS ET AL. v. BRILL ET AL

Supreme Court of Wyoming

June 10, 1907

ERROR to the District Court, Converse County, HON. RICHARD H SCOTT, Judge.

Heard on motion after default for an extension of time to file and serve briefs of plaintiff in error. The facts are stated in the opinion.

Motion granted.

T Blake Kennedy, for plaintiffs in error (for the purpose of the motion).

Having power to adopt a rule, the court has power to revoke it at will, and also to modify it for the purpose of a certain class of cases; and to make special rules for the government of each cause, as the exigencies thereof may demand. The rules are adopted to accomplish the ends of justice, and are therefore, at all times under the control of the court. (Deming v. Foster, 42 N. H., 178; Pickett v Wallace, 54 Cal. 147; Symons v. Bunnel (Cal.), 20 P. 859.) None of the former cases decided by this court touch the precise question here presented upon the facts. There is clearly shown an unavoidable casualty--an overwhelming necessity, such as ought to require the granting of the motion to extend the time for briefs. The sole counsel was not only sick, but unable to communicate with his clients or engage the assistance of other counsel.

Burke & Clark, for defendants in error.

The court rules are as binding upon the court and parties as though they were enactments of the Legislature. (R. S. 1899, Sec. 3286.) There is no authority in the rule for an extension of time after the occurrence of default. The binding character of the rule prevents the granting of the present motion. (18 Ency. Pl. & Pr., 1267; Johns v. Adams Bros., 2 Wyo. 194; Cronkhite v. Bothwell, 3 Wyo. 735, 739; Spencer v. McMaster, 3 Wyo. 105; Robertson v. Shorow, 10 Wyo. 368; Sheehan v. Ditch Co., 12 Wyo. 176.) Had the active plaintiff in error in this case used diligence he might have become informed of the situation before the time for briefs had expired. Being himself an attorney, he is supposed to be familiar with the rules of procedure.

POTTER, CHIEF JUSTICE. BEARD, J., concurs. SCOTT, J., did not sit, having been the presiding judge in the cause in the court below.

OPINION

POTTER, CHIEF JUSTICE.

After the time for filing the brief for plaintiffs in error in this case had expired under the rules the plaintiffs in error, through special counsel engaged for that purpose, filed a motion asking for additional time. The motion is supported by affidavits showing that the failure to file and serve briefs was caused by the serious sickness of the sole counsel who represented the plaintiffs in error in the court below and had been engaged to prosecute this appeal; that the sickness of said counsel was unknown to the plaintiffs in error, and until a very short time before the filing of the motion they had not been aware of the failure to file and serve their briefs; that the sickness of said counsel still continued, but that he was being treated in a hospital in a neighboring state and was recovering, and would soon be able to attend to the matter. There has been no motion to dismiss, but the defendants resist the motion to have the time extended on the ground that under the rules the plaintiffs in error are in default and are not entitled to the relief asked.

The statute provides that the Supreme Court may prescribe rules of practice for said court not inconsistent with the constitution or laws of this state, and that when said rules are adopted the same shall be as binding upon the court and attorneys thereof and the parties having business therein as though the same were enactments of the Legislature. (Rev. Stat., Sec. 3286.) Rule 15 of this court provides that within sixty days after filing the petition in error the plaintiff in error shall file with the clerk four copies of his brief and serve upon or mail to the opposite party or his attorney of record one other copy of such brief; and that within forty-five days after the expiration of said sixty days the defendant in error shall file and serve his brief. Rule 21 provides that when the plaintiff in error or party holding the affirmative has failed to file and serve his brief as required by the 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 provides 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."

In Cronkhite v. Bothwell, 3 Wyo. 739, 31 P. 400, these rules, in connection with the statute aforesaid, were considered and the opinion in the case contains some expressions that might indicate a view that a rule when once adopted is mandatory and should not in any case be waived or suspended while it remains in force; although in that case the only point clearly decided was that the excuse given for the failure to file the brief, viz.: that the attorney, who was a non-resident of the state, had mistakenly supposed the time for filing briefs to be ninety instead of sixty days was not sufficient, and that a motion made to dismiss because of the failure to file and serve the brief within the time allowed should under such circumstances be sustained; and the motion to dismiss in that case was sustained. It was, however, said: "It may be possible that no statute could take from a court of last resort the power to suspend its rules to prevent injustice, as it seems that the power of such a court to prescribe its own rules is inherent and necessary to the exercise of the power lodged in the judiciary. It may be that the Legislature has no power broad enough to fetter or control the courts of superior and appellate jurisdiction so as to preclude the exercise of independent judicial discretion or judgment. There might be cases of unavoidable casualty or overwhelming necessity presented where the court would be justified in waiving or suspending a rule, even though it is provided that it shall have the binding effect of a statute." In a few other cases since that case was decided motions to dismiss on the ground of a failure of the plaintiff in error to file and serve briefs within the time prescribed have been sustained, the court being of the opinion in each case that the excuse presented for the failure was clearly insufficient to justify a refusal to enforce the rule.

In the absence of express statutory authority a court of record possesses inherent power to make reasonable rules for the regulation of the practice therein and the conduct of its business, not in conflict with the constitution or statutes. (11 Cyc., 740; 8 Ency. L. (2d Ed.), 29, 30.) The power is expressly conferred upon this court by the statute above cited. The authorities are involved in some conflict as to whether the operation of rules adopted pursuant to statutory authority or by virtue of the inherent power of the court may be suspended or dispensed with in particular cases, where a discretion has not been reserved in the rules themselves. Some courts maintain that rules of court are equally binding upon the court and the parties, and while continuing in force should be administered according to their terms, unless a discretion in the matter is expressly reserved; it is held by others that since rules are made to aid in administering and not thwarting justice they may reasonably, but not arbitrarily, be dispensed with when the ends of justice so require. (18 Ency. Pl. & Pr., 1267; 11 Cyc., 743.) In two territorial cases the rule as to filing printed abstracts was strictly construed, though in one of them the cause was decided upon the merits for the reason that it had been continued upon that express...