Summary
In Hoover v. Shaffer et al. (1948), 118 Ind. App. 399, 80 N.E.2d 569, we dismissed where the copy of appellant's brief was delayed one day after brief was filed with the Clerk.
Summary of this case from Fisher v. DriskellOpinion
No. 17,780.
Filed August 10, 1948.
1. COURTS — Rules of Supreme Court — Force of Statutes. — The rules of the Supreme Court have the force of statutes and are binding alike on the parties and the court. Rules of Procedure and Practice in Supreme and Appellate Courts. p. 400.
2. APPEAL — Briefs — Service of Copy on Appellee Too Late — Grounds for Dismissal. — Where appellant's time for filing brief was extended by Appellate Court to and including July 14, 1948, and brief was not delivered to appellees' attorney until July 15, 1948, the appeal would be ordered dismissed for failure to serve copy of brief on appellees in time provided by Rule 2-13, Rules of Procedure and Practice in the Supreme and Appellate Courts. p. 400.
From the Wabash Circuit Court; Oren W. Dickey, Special Judge.
Action by Bertie Shaffer and Estey W. Shaffer against Burvia L. Hoover for damages arising out of an alleged breach of contract. From judgment for plaintiffs, defendant appeals.
Appeal dismissed. By the court in banc.
Raymond Brooks, of North Manchester, attorney for appellant.
Herman N. Hipskind, of Wabash, attorney for appellees.
This is an appeal from a judgment of the Wabash Circuit Court in favor of appellees against appellant for damages resulting from a breach of contract.
Appellees have filed their verified motion to dismiss this appeal on the grounds they were not served with a copy of appellant's brief within the time allowed for filing such brief, as required by Rule 2-13 of the Rules of the Supreme Court.
The record discloses appellant's time for filing his brief was extended by this Court to and including July 14, 1948; that appellant's brief was printed by the Central Publishing 1, 2. Company of Indianapolis. This Company, on July 13, 1948, mailed to the attorneys of appellees at Wabash, Indiana, a copy of appellant's brief. The postmark on the envelope in which the brief was mailed shows it was received at the Wabash Post Office on July 15, 1948. The affidavit of the Postmaster at Wabash, Indiana, shows the brief was delivered to appellees' attorney July 15, 1948.
In the case of James C. Curtis Company v. Emmerling et al (1941), 218 Ind. 172, 31 N.E.2d 57, 986, the Supreme Court, on the precise question that is before us, ordered the appeal dismissed. In that case, on page 175, the Supreme Court said:
"The rules of this court have the force of statutes and are binding alike on the parties and the court. We cannot ignore a violation of a rule so essential to the orderly administration of justice as the one with which we are here concerned."
This Court has followed this ruling in the following cases: Gary Railways Company v. Kleinknight (1941), 110 Ind. App. 72, 36 N.E.2d 939; Reasor v. Reasor (1945), 115 Ind. App. 535, 60 N.E.2d 536; Wright v. Hines (1945), 116 Ind. App. 150, 62 N.E.2d 884. So long as this rule is in force we are bound by these authorities.
The motion to dismiss is sustained. Appeal dismissed.
NOTE. — Reported in 80 N.E.2d 569.