Summary
In Wright v. Hines, supra, a copy of the appellant's brief was served on the appellee the day after the time allowed for filing thereof has expired.
Summary of this case from Fisher v. DriskellOpinion
No. 17,396.
Filed October 11, 1945.
APPEAL — Briefs — Service of Copy on Appellee — Effect of Mailing — Time Received. — The mailing of a copy of appellants' brief to appellees' attorneys on the last day for filing of the brief is not a compliance with the rules of the Supreme Court unless the brief is received by appellees' attorneys on the day it was mailed.
From the Hendricks Circuit Court; Omar O'Harrow, Special Judge.
Action between James S. Wright and another, for themselves and all other creditors of the Peoples Bank of Whitestown, Indiana, and Russell B. Hines and others. From the judgment entered, James S. Wright and another, for themselves and all other creditors of the Peoples Bank of Whitestown, Indiana, appealed, and appellees filed a motion to dismiss the appeal. Motion Sustained and Appeal Dismissed. By the court in banc.
Walter G. Todd, and Milton E. Craig, both of Indianapolis, and Archie J. Kahl, of Danville, for appellants.
Adney and Adney, of Lebanon, Hume and Gaston, of Danville, and Harding and Harding, of Crawfordsville, for appellees.
In this case the transcript was filed and cause submitted on June 18, 1945. On July 18, 1945, the appellants were granted an extension of time to and including September 18, 1945, in which to file their brief. On September 18, 1945, appellants filed their brief with the clerk of this court and on said last mentioned date mailed from Indianapolis to the attorneys of appellees at Crawfordsville, Indiana, notice of the filing of their brief and a ribbon copy thereof. This notice was received by appellees' attorneys on September 19, 1945.
Appellees have filed their motion to dismiss this appeal for the reason that appellants have failed to comply with the rules of the Supreme Court. Rule 2-19, Rules of the Supreme Court (1943 Revision) provides, in part, as follows:
"Nine copies of each brief shall be filed, together with proof of service of a copy upon the opposing party or his counsel. . . . If the brief is typewritten a ribbon copy shall be served on opposing counsel or party and not less than two ribbon copies shall be filed."
Rule 2-13 requires the appellant to serve upon the appellee copy of his brief within the time allowed for filing such brief. The mailing of such brief to appellees' attorneys on the last day of filing is not a compliance with this rule unless the brief is received by them on said day. James C. Curtis Co. v. Emmerling (1941), 218 Ind. 172, 31 N.E.2d 57, 986; Gary Railways Co. 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.
The appellees' motion to dismiss must be sustained and this appeal is dismissed.
NOTE. — Reported in 62 N.E.2d 884.