Grippen v. State

Potter, Justice. The petition in error in this case was filed August 31, 1911. The'journal entries and the original papers, with the exception of the bill'of exceptions, were filed October 10, 1911. The bill of exceptions was filed October 28, 1911. The brief of plaintiff in error was not filed until March 18, 1912, and the attorney general, for the state, has moved for a dismissal of'the proceedings in error, one of the grounds of said motion being that the brief of the plaintiff in error was not filed within the time required by the rules of this court. The cause has been heard upon that motion. Rule 15 provides that “within sixty days after filing his petition in error, the plaintiff in error in both civil and criminal causes shall file with the clerk four copies of his brief, and shall also within that period serve upon or mail to the opposite party, or his attorney of record, one other copy of such brief. Rule 16 provides that in all causes, both criminal and civil, in which the state is a party, counsel shall also serve a copy of their brief upon the attorney general. Rule 21 (104 Pac. xiv) provides:. “When the plaintiff in error or party holding the affirmative has failed to file and serve his brief as required by these rules, the defendant in error or party holding the negative may have the cause dis [489] missed, or may submit it, with or without oral argument.” Rule 20 (104 Pac. xiv) provides for an extension of' time for filing briefs, and that “by consent of parties, or for good cause shown before the expiration of the time allowed, the court or a justice thereof in vacation may extend the time for filing briefs.” No application was made in this case for an extension of time for' filing the brief of plaintiff in error. On March 9, 1912, the plaintiff in error, by his counsel, filed a motion in this court for an order directing the return of the bill of exceptions to the trial court for correction, it being stated in the affidavit filed in support of the motion that certain books in the possession of the official court stenographer had been omitted from the bill, and that counsel upon presenting the bill to the trial court had understood that said books would be produced by the stenographer and incorporated in the bill. Upon that motion an order was made directing the return of the bill, and it was so returned. On March 26,, 1912, it was again received by the clerk of this court, together with a certified copy of an order of the district court denying the application made in that court for an amendment to the bill, and reciting with reference to the alleged omitted books that when the bill of exceptions was presented to the court on September 4, 1911, the books, exhibits, and copies sought to be incorporated in the bill were not then attached thereto or presented to the court to be incorporated therein or identified, and that no application was then made to withdraw the bill for the purpose of incorporating such books, exhibits or copies therein, but that such application was made for the first time in the district court after the return of the bill from this court. Counsel for plaintiff in error urges as the only justification for the failure to file and serve their briefs within the time required by the rules that they understood that the filing and service of such briefs before the presentation of a ruling upon the motion to return the bill of exceptions for correction would waive their right to the assistance of this court in obtaining a correction or amendment of the bill. [490] Inasmuch as it was- stated in the affidavit of counsel filed in support of the motion to return the bill for correction that they did not learn of the alleged omission from the bill until January 20, 1912, before which date the time for filing and serving briefs had expired, the ground now urged as an excuse for the failure to file and serve such briefs would not seem to be sustained by the facts appearing by the record. But however that may be, if -counsel were of the opinion that by filing and serving their briefs they would waive their right to have the bill amended or returned for amendment, they might have applied for an extension of time' for filing briefs before the time therefor had expired, and it was within the power of this court, which has been many times exercised, to protect the party by such extensions as might seem necessary or proper. (See Richardson v. State, 15 Wyo. 465, 89 Pac. 1027, 12 Ann. Cas. 1048.) No application for extension of time to file and serve briefs having been made or obtained, and no sufficient excuse for the failure to make such application or to file the briefs within the time required by the rules, there is nothing to do but to dismiss the proceeding in error. It will be so ordered. Beard, C. J., and Scott, J., concur.