Keahilihau v. King

25 Haw. 139, 1919 Haw. LEXIS 33

• Court: Hawaii Supreme Court
• Decided: September 24, 1919
• Docket: No. 1174
• Status: Published

Opinion

Per Curiam:

This matter comes before us on motion to strike from the files the brief of the defendant-plaintiff in error on the ground that the plaintiff in error failed to file his brief within fifteen days after the writ of error Avas placed on the calendar and that no extension of time either by stipulation of counsel or by order of this court was ever granted the plaintiff in error.

The matter controlling the filing of briefs in this court is to be found in rule 3 of this court which provides in substance that within fifteen days after an appeal case has been placed upon the calendar the appellant shall file his opening brief, and that when, according to the foregoing provision of this rule, an appellant is in default the case may be dismissed. The writ of error in this case was placed upon the calendar on May 10, 1919, and no brief was filed or order secured extending the time for filing such brief until the 31st day of May, 1919, when the plaintiff in error procured from the chief justice an order extending the time in which to file said brief until the 15th day of June, 1919. On the 14th day of June, 1919, another order was procured from the chief justice extending the time within which said brief might be filed until the 20th day of June, 1919. Notwithstanding these extensions no brief was filed within the time thus extended and no further extension of time was secured. After the expiration of the time in the last mentioned order the plaintiff in error filed his opening brief whereupon this motion was made to strike said brief from the files and dismiss the cause.

No facts have been made to appear by affidavit or otherwise as to why the brief was not filed within the time allowed by the rule or within the time extended by the chief justice, and whether or not the rule which is applied to the extension of time for the filing of bills of exceptions to the effect that an extension of time cannot be granted after the time allowed by the statute or prior extension has expired should apply to the matter of filing briefs we think that the plaintiff in error in failing to file his brief within the time extended has shown decided laxness in the prosecution of his appeal and that the full penalty provided for in the rule is none too severe. We fully realize tlia,t the language of the rule does not make it mandatory that the proceeding be dismissed under circumstances such as we have before us in this case hut the rule was undoubtedly made for the purpose of compelling diligent prosecution of appeals and writs of error in this court.

J. 8. Ferry for the'motion. A. IF. Aluli contra.

The motion is therefore granted and the brief ordered stricken from the files and the cause dismissed.