Starley v. Wilde

• Decision Date: 10 November 1937
• Docket Number: 2025
• Parties: Starley v. Wilde
• Court: Wyoming Supreme Court

71 P.2d 1113

52 Wyo. 195

Starley v. Wilde

No. 2025

Supreme Court of Wyoming.

November 10, 1937

In resistance of the motion to dismiss, there was a brief and oral arguments by George F. Guy of Cheyenne, Wyoming, and Sam D. Thurman of Salt Lake City, Utah.

The only question here presented is whether appellants have shown sufficient justification for failure to file the brief and abstract within the required period fixed by Court Rules 15 and 21. The question has been before the court in the following cases. Halleck v. Bresnahen, 3 Wyo. 73; Spencer v McMaster, 3 Wyo. 105; Stirrett v. Stirrett, 244 P. 1006; State ex rel Bishop v. Bramblette, 295 P. 800; Lawer Auto Supply Company v. Teton Auto Company, 5 P.2d 306. In Halleck v. Bresnahen, no abstract whatsoever was filed and the case seems to have been continued and disposed of on the merits. In Spencer v. McMaster, it was urged that a doubt existed as to whether an abstract was necessary and that counsel had agreed that it might be dispensed with, but the court sustained a motion for dismissal. In Phillips v. Brill, the failure to file briefs was shown to have been caused by serious illness of sole counsel for appellants and an extension of time was granted. In Cronkhite v Bothwell, a motion to dismiss was sustained. The only excuse shown for failure to file briefs was a mistake made by non-resident counsel as to the time for filing briefs. In Stirrett v. Stirrett, the failure to file briefs in time was due to the inadvertence of a clerk in the office of counsel for the appellant, and a motion to dismiss was denied. The facts in this case seem to be quite similar to the facts in the present case. In State v. Bramblette, 295 P. 800, a motion to dismiss was sustained on the ground that an insufficient showing was made to excuse the late filing of briefs. In Lawer Auto Supply Company v. Teton, there was a miscalculation of time as to the filing of briefs. In the case at bar the time was properly calculated but from an erroneous date. Appellants believe that each case should be determined and decided on the merits of that particular case. The present case involves important questions relating to building and loan laws, and also a very considerable sum of money, and that the circumstances of the case showed diligence and good faith on the part of appellants.

On behalf of the respondent, there was a brief and oral argument by Bard Ferrall of Cheyenne.

Counsel for appellants apparently computed the time for filing the record and brief with great exactness. No allowance was made for possible delays. The brief and abstract were filed as originally predetermined by counsel, on May 25 instead of May 24, 1937. This was a violation of Court Rule 15. It did not occur to counsel to obtain a stipulation until the sixty day period had passed. The record fails to disclose a sufficient justification for a suspension of court rule No. 15.

RINER Justice.

This cause was brought to this court by the direct appeal method of procedure and the respondent has moved that it be dismissed for failure of appellants to file their brief within the time required by the rules of this court. Rule 15 (42 Wyo. 534) governs the time for filing briefs in cases brought here under procedure of this character by requiring that the appellant therein shall file and serve his brief within sixty days "after the filing in this court of the record on appeal, in both civil and criminal cases". Rule 21 (42 Wyo. 536) fixes the penalty for appellant's failure to obey Rule 15, in this language:

"When the plaintiff in error or party holding the affirmative has failed to file and serve his brief as required by these 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 (42 Wyo. 536) provides:

"By consent of parties, or for good cause shown before the expiration of the time allowed, the court or a justice thereof may extend the time for filing briefs."

In the case at bar the record on appeal was filed March 25, 1937. Appellants did not file or serve their brief until May 25 1937, i.e., not until the 61st day after the record came into the office of the Clerk of this Court. No application at all for an extension of time within which to file the brief was ever made. Counsel for appellants reside one in Cheyenne and the others in Salt Lake City, Utah.

As excuse for this failure to comply with our rules appellants submit by affidavit certain facts material to be considered, which summarized are as follows: That said record on appeal was filed inadvertently on March 25, 1937, rather than on March 26, 1937, through the action of the stenographer of Cheyenne counsel in sending it by Western Union messenger to the Clerk of this Court on the 25th day of March "without direct notification" to her employer; that counsel resident in Cheyenne had planned to file the record on March 26, 1937, and on March 25th advised associate counsel in Salt Lake City that the record would be filed on the day following, and that consequently they would have until and including Tuesday, May 25, 1937, to prepare and file appellants' brief and abstract of the record, the duty to prepare said brief and abstract having been assumed by them; that all of counsel for appellants were accordingly "under the impression" that the appeal record had been filed as planned; that the brief and abstract were duly prepared by Salt Lake City counsel and received by Cheyenne counsel on the morning of Monday, May 24, 1937; that counsel last mentioned, upon examination of said abstract, concluded that it should be corrected and that the necessary changes would require an additional day's time, and non-resident counsel were immediately so notified by phone call; that the correction was completed about noon on Tuesday, May 25, 1937, and the brief and abstract, with the requisite copies, were filed in the Clerk's office of this Court on that day; that "at about that time" Cheyenne counsel, through the Clerk of this Court, learned for the first time that the record on appeal had actually been filed on March 25, 1937; that he then endeavored to contact respondent and his counsel, but they were out of the city and no stipulation extending the time for filing said brief and abstract could be procured.

No correspondence is attached to the affidavits submitted. It is not indicated in the affidavit of the stenographer for Cheyenne counsel that after filing the record she never mentioned the fact of such filing to her employer. The copy of the bill rendered for March 1937, by the Western Union Company to Cheyenne counsel for the services of the messenger who brought the record to the Clerk's office of this Court, and which bill is attached to the stenographer's affidavit, shows that on the 25th of that month a messenger went on an errand for him to the Capitol Building in this city. The affidavit of Cheyenne counsel does not state that he made any inquiries of any one at any time as to the nature of the errand of the messenger to the Capitol Building, for which he was billed.

On June 21, 1937, respondent filed his motion to dismiss the cause for failure to comply with the rules of this court already mentioned. These rules have been in force to govern the filing of briefs in the Supreme Court of this jurisdiction practically since the State entered the Union. They have been before the court for consideration, interpretation and enforcement in a number of cases. Some of these are:

Cronkhite et al. v. Bothwell, 3 Wyo. 739, 31 P. 400; Robertson v. Shorow & Company, 10 Wyo. 368, 69 P. 1; Cook v. South Omaha National Bank, 13 Wyo. 187, 79 P. 18; Phillips et al. v. Brill, 15 Wyo. 521, 90 P. 443; Small v. Johnson County Savings Bank, 16 Wyo. 126, 92 P. 289; Ford v. Townsend et al., 22 Wyo. 397, 143 P. 356, 1199; Boner et al. v. Fall River County Bank, 25 Wyo. 88, 164 P. 1140; Inman v. City of Cheyenne, 40 Wyo. 72, 275 P. 115; State ex rel. Bishop v. Bramblette, County Treasurer, 42 Wyo. 405, 295 P. 800; Lawer Auto Supply Co. v. Teton Auto Co., 43 Wyo. 349, 5 P.2d 306.

In Cronkhite et al. v. Bothwell, supra, the excuse for not filing the brief on behalf of the plaintiffs in error was that their attorney had noted on his private docket that his brief should be filed within ninety instead of sixty days from the time of filing the petition in error, the inception of the running of time for filing his brief in appellate proceedings of that character; that he had no copy of the rules of this court, or if he had, it had been mislaid, and he was "under the impression, or felt certain" that he had the longer period in which the filing should be made. He was called away from his office on important business, but returned home some ten days before the time expired for filing his brief in the case, and then he wrote to the Clerk for a copy of the record. In granting the motion to dismiss filed by defendants in error, the court, among other things, said:

"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, but certainly the matters alleged in justification in the affidavit of one of the attorneys for the plaintiffs in error, presented in support of the motion to reinstate, do not constitute a ground for relief. * * * * * He was called away on important business, and did not return home until some 10 days before the expiration of the time for filing the brief in this case when he wrote to the clerk to send him a copy of the printed record. This was in ample time to have the time extended according to rule 20. Attorneys practicing...