Opinion
No. 12,514.
Decided March 24, 1930.
On motion to dismiss writ of error.
Motion Denied.
1. APPELLATE PRACTICE — Motion to Dismiss — Apt Time. Where brief of plaintiff in error was due December 15 and filed February 19 following, motion of defendant in error to dismiss because of delay in filing the brief is denied, because not filed in apt time, both abstract and brief having been filed before the motion was made.
Error to the District Court of the City and County of Denver, Hon. Henry Bray, Judge.
Messrs. GRANT, ELLIS, SHAFROTH TOLL, Mr. WILL SHAFROTH, for plaintiff in error.
Messrs. BARTELS BLOOD, Mr. ARTHUR H. LAWS, Mr. SAMUEL M. GOLDBERG, Mr. ROBERT E. WINBOURN, Attorney General, Mr. ARTHUR L. OLSON, Assistant, for defendants in error.
JAMES D. Connell filed a petition in the district court to set aside a default judgment in a workmen's compensation case. The petition was denied, and Connell brings the matter here on writ of error.
The writ was issued November 30, 1929. The plaintiff in error filed his printed abstract on January 20, 1930, and his printed brief on February 19. On February 21 two of the defendants in error filed motions to dismiss the writ for failure of the plaintiff in error to file his brief within 15 days after the issuance of the writ, the time limited by our rule 45 in causes "determined by the Industrial Commission." The plaintiff in error filed his abstract and brief on the theory that this is not a cause determined by the Industrial Commission, and therefore is not within the rule. We need not pass upon the question at this time. Assuming, but not deciding, that this case comes within rule 45, the brief was due December 15, 1929. Instead of moving promptly, the defendants in error delayed until February 21, 1930, to file their motions. In the meantime the plaintiff in error went to the trouble and expense of having his abstract and brief prepared and printed, an expense that would have been saved had the motions been filed in apt time. In Meek v. Loveland, 85 Colo. 346, 276 Pac. 30, we said that in such a situation a motion to dismiss is not looked upon with any extraordinary degree of favor.
Not having been filed in apt time, the motions to dismiss are denied.
MR. JUSTICE ALTER did not participate.