Opinion
No. 20,044.
Filed October 22, 1963.
APPEAL — Service of Briefs — Dismissal — Rules of Supreme Court. — Appeal will be dismissed where appellant failed to serve a copy of his brief upon the opposing party or his counsel at the time of filing briefs in the Appellate Court, together with proof of said service. Rule 2-19 of the Supreme Court.
From the Review Board of the Indiana Employment Security Division.
Henry M. Monroe, appellant, takes this appeal from an adverse decision of appellee, Review Board of the Indiana Employment Security Division; and appellee, Peerless Pump Company, has moved to dismiss the appeal.
Appeal dismissed. By the court in banc.
James Manahan, of Indianapolis, for appellant.
Leland B. Cross, Jr., William R. Riggs, Ross, McCord, Ice Miller, of counsel, all of Indianapolis, for appellee Peerless Pump Company.
Edwin K. Steers, Attorney General and Edgar S. Husted, Deputy Attorney General, for appellee Review Board.
On this, the 14th day of October, 1963, we have before us the motion, filed on September 27, 1963, of appellee, Peerless Pump Company, to dismiss this appeal upon the following grounds:
1. That this case involves the Appellant's appeal from a decision of the Review Board of the Indiana Employment Security Division mailed June 26, 1963.
2. That the Appellant filed Appellant's Original Brief with this Court on September 20, 1963, but wholly failed to serve a copy of such brief on this Appellee as required by Rules 2-13 and 2-19 of the Supreme Court prior to filing same or at any other time and no proof of service on this Appellee was ever filed.
3. That for purposes of this motion, this Court has jurisdiction to grant this motion.
With said motion to dismiss, and on said September 27, 1963, there was likewise filed by counsel for said appellee, Peerless Pump Company, verified proof of service of said appellee's motion to dismiss and copies of brief in support thereof, on Henry M. Monroe, appellant herein, and to his counsel of record, and to a Deputy Attorney General of Indiana, as well, representing said Board of Review, together with receipts for certified mail which shows the posting on September 26, 1963. See Rule 2-13.
Appellant has made no showing that the statements contained in appellee's said motion are erroneous; nor has appellant, so far as the record of this court is concerned, made any effort to correct the asserted defect in this appeal by serving a copy of its brief on the said appellee, Peerless Pump Company. Furthermore, the record before us shows that service was had only on the Attorney General of Indiana, counsel for said Review Board, one of the appellees, who acknowledged receipt of such service. The record does not show that service was had on the other appellee, Peerless Pump Company, or its counsel.
Under authority of Rule 2-19 which, among other things, requires that a copy of appellant's brief shall be served upon the opposing party, or his counsel, at the time of filing briefs in this court, together with proof of said service, and also in accordance with the opinion and decision rendered in Dawson v. Review Board of Indiana Employment Security Division et al. (1961), 132 Ind. App. 1, 175 N.E.2d 35, we have no alternative but to dismiss this appeal.
In the Dawson case we find this language:
"Also failure to serve a copy of appellant's brief as required by Rule 2-19, prior to filing the same results in dismissal of appeal. Indiana Trust Savings Bank, Executor of Asplan, deceased v. Zapp (1955), 126 Ind. App. 92, 130 N.E.2d 329."
Appeal dismissed.
NOTE. — Reported in 193 N.E.2d 260.