Shaul v. Colorado Fuel & Iron Company

• Decision Date: 14 November 1933
• Docket Number: 1837
• Citation: 26 P.2d 639,46 Wyo. 348
• Parties: SHAUL v. COLORADO FUEL & IRON COMPANY
• Court: Wyoming Supreme Court

26 P.2d 639

46 Wyo. 348

SHAUL v. COLORADO FUEL & IRON COMPANY

No. 1837

Supreme Court of Wyoming

November 14, 1933

APPEAL from the District Court of Platte County; SAM M. THOMPSON Judge.

Proceeding by A. W. Shaul, also known as Arthur W. Shaul, for compensation under the Workmen's Compensation Law against The Colorado Fuel and Iron Company, employer. To review an award for claimant, employer and defendant prosecuted direct appeal, and claimant, through the Attorney General, moved to dismiss the appeal.

Motion to dismiss denied.

For claimant's motion to dismiss there was a brief by Ray E Lee, Attorney General, O. O. Natwick, Deputy Attorney General, and W. C. Snow, Assistant Attorney General of Cheyenne, Wyoming, and oral argument by Mr. Lee.

The statute (124-114 R. S. 1931) requires appellant's brief to be filed within fifteen (15) days after the record on appeal is filed in any case. In the present case the brief of appellant was not filed until sixteen (16) days after the record on appeal was filed. Failure to file brief within time is ground for dismissal. Robertson v. Shorow, 10 Wyo. 368; Ford v. Townsend, 22 Wyo. 397; Small v. Johnson County Savings Bank, 16 Wyo. 126; Cook v Bank, 13 Wyo. 187; Brown v. Brown, 29 Wyo. 60; Lobell v. Oil Company 21 Wyo. 342; Board of Commissioners, 23 Wyo. 207; Bank v. Stout, 24 Wyo. 106; Sheep Company v. Oil Company, 29 Wyo. 59; Atkins v. Hunsaker, 29 Wyo. 411; Nelson v. Sunset Oil Co., 36 Wyo. 245; Inman v. City of Cheyenne, 40 Wyo. 72. The motion to dismiss should be sustained.

For the employer and appellant, there was a brief resisting motion to dismiss, and oral argument by William E. Mullen, of Cheyenne, Wyoming.

Nine of the cases cited in support of the motion, relate to the operation of Supreme Court Rule No. 15, and the other three cases cited relate to other Supreme Court rules that have nothing whatever to do with appeals in compensation cases. There is no Supreme Court rule relating to the filing of briefs in compensation cases. Supreme Court Rule No. 35 relating to the filing of records on appeal, provides that it shall not apply to compensation cases because the statute fixes a different and definite time for filing such records in the Supreme Court. The statute relating to compensation appeals at the time this rule was adopted (4328 C. S. 1920 as amended by Section 2 of Chapter 124 Laws 1925) required the appeal record to be filed within thirty (30) days from date of decision unless time was extended and allowed all parties thirty (30) days thereafter to file briefs. In the preparation of Rule No. 35, this Court construed the foregoing statute as fixing a definite time for filing appeal records in compensation cases, so the word definite" was used in the rule. The word "definite" means something having certain or distinct limits; fixed; exact; clear. (Webster's International Dictionary--382.) The word "definite" as used in the rule means thirty (30) days from the date of the decision or order unless time be extended. The statute then allows all parties thirty (30) days for the filing of briefs after this definite time fixed by statute. The statute extending the time for filing records on appeal in compensation cases to seventy (70) days was enacted in 1931, Chapter 73, Section 59. It allows appellant fifteen (15) days for filing and serving his briefs and respondent fifteen (15) days thereafter to file his briefs. The word "thereafter" as used in the statute must relate to a definite period in order to avoid confusion. The Clerk of the Trial Court prepares and files the record on appeal in Compensation cases in the Supreme Court. If counsel for appellant is to be bound from the particular day the Clerk may choose to file the record, it would lead to endless confusion, since the record might be in the Supreme Court fifteen (15) days before appellant's counsel would know anything about it. The only definite times fixed by statute for filing appeal records in compensation cases is the seventy (70) day period, or any extension thereof allowed by the court. Where an act is required to be performed within a definite time, the full period of time is ordinarily allowed for its performance, and where others are required to act in relation to such performance, the time to act is fixed to begin at the expiration of the time fixed for the other party to perform. This court recognized the necessity of following this principle in its formulation of Supreme Court Rule No. 15, which allows appellants a full sixty (60) day period for briefs and respondents full forty-five (45) days after the expiration of such sixty (60) day period to file briefs. The object of briefs is to secure orderly disposition of court business. Robertson v. Shorow & Company, 10 Wyo. 368; Krivokapich v. Owl Creek Coal Co., 41 Wyo. 9; 281 P. 195; Marsh v. Aljoe, 41 Wyo. 119, 282 P. 1055; Lion Coal Co. v. Contas, 42 Wyo. 59, 289 P. 368. In this case the Clerk of the trial court filed the record on August 3d, or one day before the expiration of the seventy (70) day period. Appellant's briefs were filed on August 19th, and within fifteen (15) days from the expiration of the seventy (70) day period, but as it happened, sixteen (16) days after the date upon which the Clerk filed the record in the Supreme Court. The motion is based upon the theory that the fifteen (15) day brief period commences on whatever day the Clerk of the District Court might happen to file the appeal record in the Supreme Court, and as there is no provision for notifying counsel, the extremely short brief period of fifteen (15) days allowed in these cases might expire without counsel's knowledge. The motion should be denied.

RINER, Justice. KIMBALL, C. J., and BLUME, J., concur.

OPINION

RINER, Justice.

This is a case arising under the Workmen's Compensation Laws of this State, and the respondent, through the Attorney General, has filed a motion to dismiss the direct appeal proceeding instituted by appellant, to review an order of award made by the District Court of Platte County in favor of respondent, claimant below.

The motion to dismiss is grounded upon the conceded facts that the record on appeal was filed in this court on August 3, 1933, and that the abstract of record and brief of appellant were not served upon the respondent or filed here until August 19, 1933.

The statute dealing with the point raised is that part of section 124-114, Wyo. Rev. St. 1931, reading:

"Any order given and made in any investigation or hearing by a court or judge pursuant to the provisions of this chapter shall be reviewable by the state supreme court on proceedings in error in the manner prescribed by the code of civil procedure; provided, however, that the petition in error, bill of exceptions and record on appeal must be filed in the supreme court within seventy (7...