Murray v. Williamson

79 Ind. 287

• Court: Indiana Supreme Court
• Decided: November 15, 1881
• Docket: No. 8395
• Status: Published

Opinion

Worden, J.

— In this case an appeal was prayed for and. granted in term, and the record, containing an assignment of error and joinder and an agreement of the parties to the submission of the cause, was filed in the office of the clerk of this court on December 30th, 1879, and thereupon the clerk entered the submission as of that date.

No brief for the appellant was filed until July 14th, 1880.. On-July 21st, 1880, the appellee filed a motion to dismiss the appeal, because no brief had been filed by the appellant within the time prescribed by the rule of this court.

This motion will have to prevail. Rule 14 of this court provides, that “Where a cause is submitted on call or by agreement, the appellant shall have sixty days in which to file a brief, and if not filed within the time limited, the clerk shall enter an order dismissing the appeal,” etc. The rule applies as well to causes submitted by agreement as to those submitted on call, and as well to those appealed in term of the court below as to those appealed in vacation. The clerk should have entered an order dismissing the appeal at the expiration of sixty days from the submission, no brief having been filed; but this was, through inadvertence, as we suppose, omitted.. But we must now order to be done what was then omitted. The fact that a brief has since been filed for the appellant is no answer to the appellee’s motion. He has the right to have the appeal dismissed. Several cases have been dismissed under similar circumstances. The rule is easily complied with. A brief filed in compliance with it does not prevent the appellant from afterwards filing a more extended or elaborate one, if he wishes to do so.

The appeal is dismissed, at the costs of the appellant.