Fisher v. Driskell

153 N.E.2d 605, 129 Ind. App. 29, 1958 Ind. App. LEXIS 150

• Court: Indiana Court of Appeals
• Decided: October 31, 1958
• Docket: No. 18,944
• Status: Published

Opinions

On Motion to Dismiss (Dissenting Opinion)

Royse. J.

I feel it my duty to dissent from the order of this court denying appellee’s motion to dismiss this appeal because appellee did not receive a copy of appellant’s brief on the day it was filed with the Clerk of this Court.

The records shows that appellant obtained an extension of time to file his brief to November 26, 1956. He filed the brief on November 23, 1956 and served a copy to appellee on November 26, 1956, filing his proof of service with the Clerk November 28, 1956.

The majority denied the motion of appellee because the brief was filed three days before it was due and appellee received his copy on the day the brief was due under the extension granted. Certainly there can be no question that the time for appellee to file his answer brief commenced November 23, 1956.

I base my dissent on the following authorities:

In James C. Curtis & Company v. Emmerling (1941), 218 Ind. 172, 31 N. E. 2d 57, 986, the Supreme Court, in dismissing the appeal where Rule 20 adopted June, 1937 which provided as follows:

“Not less than nine copies of each brief, two of which, if typewritten, shall be ribbon copies, shall be filed with the clerk together with proof of service of a ribbon copy upon opposing party or counsel.”

after pointing out that the rule was awkward and had been corrected by Rule 2-19, 1940 Revision, said:

“In view of the situation pointed out above, it seems necessary to hold that under Rule 20, 1937, the appellant is required to serve a copy of his brief on the appellee within the time allowed, whether such brief is printed or typewritten. If it were otherwise, appellant might accomplish a delay in the consideration of an appeal, not contemplated by the rules, by the simple device of filing his brief in time and then withholding service of a copy upon his opponent, since it would be unreasonable to hold that an appellee’s time might run against him without his knowledge.”

In Gary Railways Company v. Kleinknight (1941), 110 Ind. App. 72, 36 N. E. 2d 939, the court held that under Rule 20, 1937, the depositing in the mail on the day the briefs were filed in the office but not received by appellee until four days later, did not comply with the rule and the court reconsidered its denial of appellee’s motion to dismiss and dismissed the case.

In Hoover v. Shaffer et al. (1948), 118 Ind. App. , 80 N. E. 2d 569, we dismissed where the copy of appellant’s brief was delayed one day after brief was filed with the Clerk. This was a unanimous decision participated in by Bowen and Crumpacker, JJ.

In Coal Operators Casualty Co. v. Randolph (1955), 125 Ind. App. 364, 122 N. E. 2d 737 (Transfer denied), where brief was received by appellee one day after being filed with the Clerk, this court, in an opinion by Kelley, C. J., dismissed the appeal. Judges Bowen, Crumpacker and Pfaff agreed with this decision.

In Matlaw Corporation v. War Damage Corporation (1953), 123 Ind. App. 593, 112 N. E. 2d 233, 868, this court, by Per Curiam opinion, dismissed petition for rehearing because appellee’s petition for rehearing was not received by appellant until one day after it was filed. In this case Judge Crumpacker wrote, in his name, the original opinion and I dissented. My record shows he was the author of the Per Curiam opinion, to which I agreed, as did judges Bowen and Kelley.

In the foregoing numerous other authorities are cited to the same effect.

I believe the action of the court is in direct conflict with the above authorities. There are no authorities to the contrary.

Ordinarily it is not necessary to write an opinion on a dissent to such an action. However, because I feel the appellee and appellant should not be put to the additional expense and time of preparing and filing an answer and reply brief I express my views so that if the appellee so chooses he may file a petition for rehearing and if that is denied may seek a transfer to have this matter finally determined by the Supreme Court.