Opinion
No. 9709.
Submitted March 11, 1957.
Decided March 22, 1957.
APPEAL AND ERROR. 1. Appeal and Error — Motion to vacate setting for oral argument denied. In a criminal appeal where seven extensions to appellant for filing brief had been given, his motion to vacate setting for oral argument in Supreme Court was denied.
By verdict of a jury returned February 10, 1956, Marvin Cockrell was found guilty of the crime of assault in the second degree and his punishment left to be fixed by the court. The court sentenced Cockrell to a term of two years in the state penitentiary. From the judgment of conviction and the trial court's order denying him a new trial Cockrell appealed to this court.
On June 16, 1956, Cockrell filed his two volume transcript on appeal in the office of the clerk of this court.
Section 94-8113 of the Revised Codes of Montana of 1947 provides: "An appeal shall stand for trial immediately after filing the transcript on appeal, if the supreme court is in session; if not in session, at the next term thereafter, on proof of notice of appeal to the respondent."
Pursuant to the mandate of the above statute this court on December 31, 1956, set Cockrell's appeal for oral argument and hearing at 10:00 a.m., January 14, 1957.
Subdivision 2 of Rule X of the published rules of this court provides, that within thirty days after the service of the transcript on appeal, the appellant's brief shall be served and filed.
Commencing with an order made July 13, 1956, seven separate orders have been made by this court granting seven separate requests of counsel for appellant for further extensions of time within which to serve and file appellant's brief, the last of such orders being made and given December 27, 1956.
On January 4, 1957, appellant's counsel made application to this court to vacate the hearing of Cockrell's appeal so set for January 4, 1957, but because this is a criminal appeal, and because appellant has neither served nor filed his brief to this date, and because of the mandate of R.C.M. 1947, section 94-8113, supra, the application to vacate the setting is denied and the appeal shall stand for trial on the date ordered.