Opinion
No. 27,182.
Filed February 27, 1939. Motion to reinstate denied April 10, 1939.
1. TIME — Days — Excluding First Day — Time for Appeals. — In computing time within which to take proceedings in an appeal, the first day shall be excluded and the last day included. p. 453.
2. APPEAL — Briefs — Filing — Time Fixed by Court Rules — Appeals From Interlocutory Orders. — Court rule requiring briefs on appeal from interlocutory orders to be filed ten days after submission will be strictly enforced. p. 453.
3. APPEAL — Briefs — Filing — Failure to File Within Time — Dismissal. — Where appellant's briefs on appeal from an interlocutory order were filed on the 11th day after submission, in violation of a 10-day court rule, the appeal was dismissed. p. 453.
From Jasper Circuit Court; George F. Sammons, Special Judge.
Action by James Demetrakopoulos against Local Union No. 403 of Bartenders, Restaurant and Miscellaneous Hotel Employees Union and others for injunction. From an interlocutory order granting a temporary injunction, defendants appealed. Appeal dismissed.
Fitzgerald Young, Martin J. Downey, and Joseph V. Stodola, Jr., for appellants.
Jay E. Darlington, William J. Isham, Jr., and Crumpacker Freidrich, for appellee.
This is an appeal from an interlocutory order granting a temporary injunction. The cause was submitted in this court on January 16, 1939. Appellee has filed a motion to dismiss the appeal for the reason that appellants did not comply with rule 16 of this court by filing briefs within 10 days after submission, pointing out that appellants' briefs were not filed until January 27, 1939. An examination of the record establishes the truth of this assertion.
Section 2-4704 Burns' Ind. St. 1933, section 1211 Baldwin's Ind. St. 1934, provides that, in computing time in which an act shall be done, the first day shall be excluded and the last 1. day included. This statutory rule has been approved many times by decisions of this court. It, therefore, follows that the briefs were filed on the eleventh day after submission.
The 10-day rule applying to interlocutory orders is included as part of rule 16 which fixes 30 days as the limit for appellants' brief on final appeal. This court has held that where 2, 3. briefs are filed one day after the time limit for filing briefs, such delay is fatal to the appeal. Leatherman et al. v. Board of Commissioners (1897), 148 Ind. 282, 47 N.E. 458; Smith v. Wells Manufacturing Co. et al. (1896), 144 Ind. 266, 271, 43 N.E. 131. The rule was enforced in the recent decision of Kelley, Glover, Vale Realty Co. v. Kramer (1937), 211 Ind. 321, 6 N.E.2d 963.
It is the purpose of the statute that appeals from interlocutory judgments shall be disposed of as speedily as possible. Rule 16 was adopted for that purpose. It is even more important that the rule be strictly applied to appeals from interlocutory judgments than from final judgments. Rule 16 is not open to construction and means exactly what it says. The appellants have not complied with the rule.
For the reason that the briefs were not filed in time, this appeal is dismissed.
Roll, J., absent.