Leatherman v. Board of Commissioners

47 N.E. 458, 148 Ind. 282, 1897 Ind. LEXIS 205

• Court: Indiana Supreme Court
• Decided: June 24, 1897
• Docket: No. 18,303
• Status: Published

Opinion

Pee Curiam.

This appeal was submitted Decem- ' ber 11,- 1896, and notice issued to the parties.

The record discloses that appellants filed their first ■ brief on February 10, 1897. Eule twenty of this court requires the appellant to file his brief before the expiration of sixty days from the date of submission.

According to the recognized method of computing time under the code, the last day allowed for the filing of appellants’ brief, was February 9,1897, and as this-day did not fall upon Sunday, the brief was not filed in time. ’ Schoonover v. Irwin, 58 Ind. 287; Hogue v. McClintock, 76 Ind. 205; Elliott App. Proc., section 449. This rule is mandatory, and in the absence of the written request of the appellee as provided by it, the clerk of this court must dismiss the appeal for the failure of the appellant to file his brief within the time required, and in the event the clerk neglects to discharge this duty, the court will, on its own motion, .order the dismissal. The fact that the appellant, before the appeal is dismissed, but after the expiration of the allotted time, has filed a brief, will not serve to rescue the case from the operation of the rule; neither is its requirement subject to be waived by the appellee, except by the method therein provided. Manss Bros. Boot and Shoe Co. v. Templeton (Ind. Sup.), 44 N. E. 1108. For the reason stated, it is ordered by the court that this appeal be and the same is hereby dismissed.