Robertson v. Shorow & Company
| Decision Date | 03 June 1902 |
| Parties | ROBERTSON v. SHOROW & COMPANY |
| Court | Wyoming Supreme Court |
ERROR to the District Court, Natrona County, HON. CHARLES W BRAMEL, Judge.
On motion to dismiss for default of plaintiff in error in filing briefs. After motion to dismiss was filed, and notice of hearing thereon had been given, counsel for plaintiff in error moved for leave to file briefs for reasons stated in an attached affidavit. The facts are stated in the opinion.
Proceedings in error dismissed.
Eugene D. Norton, for plaintiff in error.
Homer Merrell, for defendants in error.
Defendants in error move that the proceedings in error herein be dismissed for the failure of plaintiff in error to file and serve briefs within the time required by the rules of this court. The petition in error was filed and summons in error issued August 21, 1901. The motion to dismiss was filed December 20, 1901. Notice of the motion, and that it would come on for hearing May 15, 1902, was served upon the attorney for plaintiff in error May 5, 1902. Up to that time no briefs had been filed or served.
At the same time that the briefs were filed, plaintiff in error filed a motion for leave to file them upon grounds set forth in an affidavit of her counsel attached to the motion. In that affidavit counsel states, in substance, that within the time provided by our rules for filing briefs he entered into a verbal agreement with Fred D. Hammond, attorney for defendants in error, that both would waive the time in which briefs should be filed, the reason therefor being that affiant was ill, and said Hammond was busy with other matters; and the latter then said that it was immaterial to him or his client when the briefs were filed by plaintiff in error, and he would prefer that they be not filed until he heard from his client; that subsequently, in the month of January, 1902, affiant asked Hammond if he had heard from his client, stating that if he had affiant would prepare and serve him with a brief, but that said Hammond informed affiant that he need not be in any hurry, but to prepare the brief at his leisure, and he would waive any and all irregularities as to time. Affiant also stated that it had been the custom and practice for Mr. Hammond and himself to verbally stipulate with reference to matters of practice.
It was held in Cronkhite v. Bothwell, 3 Wyo. 739, 31 P 400, that the rules of this court are binding upon the court, as well as attorneys and parties litigant. Indeed, that is the literal reading of the statute. The provision is that the rules of this court shall be as binding upon the court and the attorneys thereof, and the parties having business therein, as though the same were enactments of the Legislature. (Rev. Stat. , Sec. 3286.) In the case above cited a motion to dismiss the proceedings in error on the ground that plaintiff in error had neglected to file briefs within the time required by the rules was sustained, notwithstanding that the briefs had been filed after the expiration of the time, and the delay had been caused by a misunderstanding of counsel as to the time within which briefs were required to be filed, counsel having erroneously supposed the limitation to be ninety instead of sixty days. The court said in the opinion that it was not seen how the court could disregard or suspend the rule. It was, however, stated that it may be possible that a statute could not deprive a court of last resort of the power to suspend its rules to prevent injustice. The court did not go so far as to hold directly that the court possessed such power. The statement was rather a carefully guarded expression to the effect that there might arise "cases of unavoidable casualty or overwhelming necessity," wh...
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