Opinion
No. 19,526.
Filed May 19, 1961.
1. APPEAL — Briefs — Extension of Time — Courts — Clerk — Dismissal. — After the Appellate Court has granted an extension of time within which to file appellant's brief, the court, and not the Clerk, should dismiss the appeal for failure to file briefs within time limited. p. 3.
2. APPEAL — Brief Filed After Time Has Expired but Before Dismissal. — The fact that appellant's brief is filed after his time has expired but before the order of dismissal is entered will not save the appeal. p. 3.
3. APPEAL — Failure To Serve Copy of Brief — Dismissal — Rules of Supreme Court. — Failure to serve a copy of appellant's brief as required by Rule 2-19, prior to filing the same, results in a dismissal of the appeal. p. 3.
From the Review Board of the Indiana Employment Security Division.
The Review Board of the Indiana Employment Security Division filed its motion to dismiss this appeal taken by appellant, James Dawson, Jr.
Appeal dismissed. By the court in banc.
James Dawson, Jr., pro se. Edwin K. Steers, Attorney General and Quincy D. Baldwin, of Fort Wayne, for appellees.
Appellee, Review Board of the Indiana Employment Security Division, filed its Motion to Dismiss this appeal, alleging in substance that appellant had failed to comply with the rules of the Supreme and Appellate Courts in the following: (1) that appellant filed his brief on December 16, 1960, which was thirty-seven days after the final date of filing as granted to appellant by an extension of time within which to file said brief; and (2) that no copy of appellant's brief was served on appellee, Review Board of the Indiana Employment Security Division or their counsel, Edwin K. Steers, Attorney General of the State of Indiana, prior to the filing of said brief, or at any other time, as required by Rule 2-19, and no proof of service was ever filed.
Rule 2-15 of the Supreme Court requires that "the appellant shall have 30 days after submission in which to file his brief, and if the brief is not filed within the time limited the clerk shall enter an order dismissing the appeal, unless a petition for extension of time is on file." Under authority of Rooney v. City of East Chicago (1958), 129 Ind. App. 128, 148 N.E.2d 842 (Rehearing denied May 13, 1958, transfer denied September 9, 1958), since a petition 1. for extension of time had previously been granted, it was proper for the clerk to take no action on dismissal, for after the court has once granted an extension of time, the court, and not the clerk, should dismiss the appeal.
The fact that appellant's brief is filed after his time has expired but before the order of dismissal is entered, will not save the appeal. Flanagan, Wiltrout and Hamilton, § 2666, 2. ch. 53, p. 238 and cases cited therein. Leatherman v. Board of Comrs. (1897), 148 Ind. 282, 47 N.E. 458; Manns Bros. Boot etc. Co. v. Templeton (1896), 149 Ind. 706, 44 N.E. 1108.
Also failure to serve a copy of appellant's brief as required by Rule 2-19, prior to filing the same results in a dismissal of the appeal. Indiana Trust Savings Bank, Executor of 3. Asplan, deceased v. Zapp (1955), 126 Ind. App. 92, 130 N.E.2d 329.
Appeal dismissed.
Bierly, Myers, Ryan and Kelley, JJ., concur.
NOTE. — Reported in 175 N.E.2d 35.