Opinion
February 20, 1959.
PRESENT: Condon, C.J., Roberts, Paolino and Powers, JJ.
SUPREME COURT. Motion to Dismiss. Failure to File Brief. Plaintiff filed written motion to dismiss defendant's bill of exceptions for failure to file brief in accordance with Rule 15 and, at the hearing, defendant sought to excuse his failure on the ground of past illness of his counsel. Held, that ordinarily court would treat such fact as a sufficient excuse, but in this instance it lacked the persuasive force it otherwise would have had since court was not apprised of illness by counsel until the day the case was called for hearing on the merits and, in the circumstances, some penalty would be required but not to the extent of dismissal of the exceptions. Rules of Supreme Court, Rule 15.
MOTION TO DISMISS filed by plaintiff and based upon the failure of defendant to file his brief in accordance with Rule 15 of the Rules of Supreme Court. After hearing, motion denied, but on condition that the defendant pay the plaintiff a counsel fee of $50 on or before a certain date and case peremptorily assigned for hearing on the merits. Otherwise motion to dismiss would be granted.
Charles A. Curran, Leonard Decof, for plaintiff.
Ralph Rotondo, for defendant.
The above-entitled case came on to be heard on the plaintiff's written motion to dismiss the defendant's bill of exceptions for failure to file his brief in accordance with Rule 15 of the Rules of the Supreme Court.
At the hearing the defendant sought to excuse such failure on the ground of past illness of his counsel. Ordinarily we would treat such fact as a sufficient excuse, but in this instance it lacks the persuasive effect it otherwise would have since the court was not apprised thereof by said counsel until the day the case was called for hearing on the merits. In the circumstances some penalty must be imposed but not to the extent of dismissal of the exceptions.
We are of the opinion that while the extreme penalty of dismissal should not be imposed, the plaintiff is at least entitled to have an early hearing on the defendant's exceptions at this session and to have costs assessed against the defendant for his failure to be ready on the day to which the case had been assigned for hearing.
Accordingly on condition that the defendant pays the plaintiff a counsel fee of $50 on or before March 2, 1959, her motion will be denied and the case peremptorily assigned to March 11, 1959 for hearing on the merits. Otherwise said motion to dismiss will be granted.