Opinion
No. 5000.
October 29, 1928.
APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. O.R. Baum, Judge.
Motion to dismiss appeal. Granted.
William Edens, for Appellant.
Finis Bentley, for Respondents.
Counsel cite no authority on point decided.
The transcript herein was filed here March 1, 1927. Appellant made no application for extension of time within which to file his brief. In August, 1928, the cause was duly reached for setting, and was set to be heard upon September 7, 1928. On August 24, 1928, respondents served, and on the 25th filed, a motion to dismiss the appeal for failure of appellant to file and serve a brief. On August 25, 1928, appellant served, and on the 27th filed, his brief; thus, the respondents would have had but thirteen days to file and serve their brief if the matter were to be heard upon its merits.
On hearing of the motion to dismiss, counsel for appellant filed an affidavit giving his interpretation of an agreement by which he was not to be required by respondents to observe the rules of this court, but that it should only be necessary for him to file and serve his brief "before the date of hearing of the appeal . . . . except that no delay should be caused in the submission of the said cause at the term of (at) which the cause may be set for hearing"; that his failure to serve his brief "so as to give them ample time to file their reply brief, before the time of hearing," was caused by a delay of the printer.
Respondents' interpretation of the agreement, as shown by affidavit, was that it was agreed between counsel that the appellant's brief would be filed in plenty of time for respondents to prepare and file a reply brief; that early in July, 1928, counsel for appellant stated that he was leaving in a few days on a vacation, and asked if it would be all right if he served and filed his brief upon his return; that affiant stated that that would not give him sufficient time to prepare a reply brief; and it was agreed that counsel for appellant would serve a typewritten brief before leaving on his vacation; that he did not do this; and that no brief was served prior to service of the motion to dismiss the appeal.
If appellant had even complied with his agreement, the cause could have been heard upon its merits at the regular setting. This court cannot recognize, as a matter of right, stipulations such as this. No reason is shown for inability to prepare this brief long prior to July, 1928, or even within the time required by the rules. Failure of appellant to comply with the rules of this court for over sixteen months in the filing of his brief cannot be excused when such failure appears to be due to nothing but a wish to procrastinate; interferes, as this has, with the orderly procedure of this court; and results in the delay of the hearing of a cause so long theretofore at issue.
The motion to dismiss is granted. Costs to respondents.
Wm. E. Lee, C. J., Budge and Givens, JJ., and Hartson, District Judge, concur.