United Mine Workers of America, Dist. No. 23 v. Morris

• Decision Date: 05 December 1957
• Citation: 307 S.W.2d 763
• Parties: UNITED MINE WORKERS OF AMERICA, DISTRICT NO. 23, et al., Appellants, v. A. P. MORRIS et al., Partners T/D/B/A Morris Brothers Company, Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 763

307 S.W.2d 763

UNITED MINE WORKERS OF AMERICA, DISTRICT NO. 23, et al., Appellants, v. A. P. MORRIS et al., Partners T/D/B/A Morris Brothers Company, Appellees.

Court of Appeals of Kentucky.

Dec. 5, 1957.

Earl F. Martin, Hartford, Willard P. Owens, Washington, D. C., for appellants.

Clarence Bartlett, Woodward, Bartlett & McCarroll, Owensboro, for appellees.

CLAY Commissioner.

Before us is a motion to dismiss this appeal because of the failure of appellant to file a 'Statement of Appeal' within the time required by the Rules of this Court. We are writing an opinion to give the Bar of Kentucky notice of our ruling and the reasons therefor.

CR 73.08 requires the appellant to file the record on appeal within 60 days from the date of filing the notice of appeal (unless an authorized extension of time is granted). RCA 1.090 provides that on original appeals in civil cases 'the appellant shall file with the record on appeal' (our emphasis) a statement of appeal setting forth specified essential information. RCA 1.070 provides in part as follows:

'(a) To perfect an original appeal the appellant shall (1) cause the record on appeal to be filed, (2) pay the tax of $5 required by KRS 142.011(1), and (3) file the statement of appeal required by RCA 1.090.'

RCA 1.060(c) permits the clerk to enter an appeal in the docket book only when the appealing party has complied with RCA 1.070.

It could not be made clearer by our Rules that the filing of the statement of appeal with the record on appeal is an indispensable part of the appeal procedure. This is not something new, since almost from time immemorial the statement of appeal was required by our former Civil Code of Practice. Section 739. It is not a formality, but is required because it furnishes this Court necessary information with respect to the parties to the appeal, the judgment appealed from, and other items of importance. The clerk is unable to advise the appellees that an appeal has been perfected until they have been designated in such statement. No steps looking to the disposition of an appeal by this Court may be taken without the information furnished by it.

In the present case appellants had until October 1, 1957 to file the record on appeal under CR 73.08. The record was received by the clerk of this Court (having been sent by the circuit clerk) on September 25. On that date our clerk advised appellants' attorney of the receipt of the record, and further advised: 'As soon as all necessary papers are received, this appeal will be properly filed and docketed'. Without having a statement of appeal the clerk was not authorized to file this record.

In spite of this notice and in spite of the fact that appellants' appeal time ran out on October 1, the statement of appeal was not filed until October 7. Under the rules above set out, the latter was the date the record was officially filed, which was several days too late.

It is the contention of appellants that the filing of the statement of appeal is a 'mere technicality', and that it would be unconscionable for the Court to dismiss the appeal for failure to file it within the time prescribed. Let us examine this 'mere technicality' argument.

All rules of legal procedure are technical. They are peculiar to the science and practice of law. They prescribe the specialized method by which the judical process may be invoked and exercised. Without rules the judicial machinery could not operate at all. It has been aptly stated:

'Judical procedure fixes the conditions, the time and manner as to which one may seek the use of the courts; it prevents surprise, oppression, and a subsequent attack on the same issue; it makes the humblest man the equal of the strongest; and it confines the oppressive hand of the government to the orderly method open as well to the humblest citizen. * * *. Since justice can only be administered scientifically, not popularly, it must be done by fixed, correlated rules, lest principle be sacrificed for expediency and civil liberty and property rights be based upon a whim, and the necessary popular faith fail from lack of confidence and respect.'

Shelton, The Philosophy of Rules of Court, 13 ABA Journal, Part II, pages 3 and 4.

Judicial administration is dependent upon procedural rules. Without a definitive method of procedure a court cannot function effectively, nor would citizens have the equal protection of the law. See Kass v. Baskin, 82 U.S.App.D.C. 385, 164 F.2d 513; Tyndale v. Manufacturers Supply Co., 209 Ga. 564, 74 S.E.2d 857.

We cannot say that rules regulating appeal procedure are mere technicalities to be enforced or relaxed upon the whim of this Court. Such rules have the force of law. People v. Byrnes, 4 Ill.2d 109, 122 N.E.2d 247. As stated in Allmon v. Review Board of Indiana Employment Security Division, 1953, 124 Ind.App. 212, 116 N.E.2d 115, at page 117:

'This court is not inclined to dispose of litigation by mere technicalities; however, the rules of the Supreme Court are clear and concise and it is the duty of all parties preparing transcripts to comply with the rules of the court. The rules of the Supreme Court and this court when adopted and published have the same force and effect as law and are binding alike upon courts and litigants.'

It is true that all procedural rules are not of equal significance. Under proper circumstances, a violation may be excused for good cause shown. Compliance may often be waived by the opposing party. Strictness of enforcement may...