Bunday v. Smith

CORSON, J. This case is before us on a motion to dismiss the .appeal on the ground of delay in prosecuting the same. ■ It is disclosed by the affidavit of one of the attorneys for the respondents: That the appeal was taken from the judgment and order denying a new trial, on the loth day of April, 1906. That .the sai,d cause was not placed on the October calendar for that ydar but on or about the Tst day of October, 1906, said appellant ah,d respondents by their respective attorneys entered into the following stipulation, omitting title: “It is hereby stipulated and agreed by and between the parties to the above-entitled action that said cause may be placed upon the calendar of sard court for the October, 1906, term and submitted to the court without oral argument upon printed briefs. lit is further agreed that said appellant shall serve arid file his printed abstract and brief in said cause on or before the 10th day of November, 1906, and that said respondents shall have until the 20th day of December, 1906, within which to prepare '.and serve their amended abstract and printed brief.’’ That said appellant has never served or filed a printed abstract or brief on said appeal as provided by said stipulation. .One of the attorneys for the appellant files an affidavit, in which he claims -that, subsequently to the making of the written stipulation, there were oral agreements between the counsel for the respondents, who makes the affidavit on .the pant of the respondents and himself, giving the appellant further time in which to file and serve his abstract and briefs; but the counsel for the respondents does not admit that .there were any such oral stipulations, and denies the same. In view of the provisions of section 699, Rev. Pol. Code, which provides as follows: “An attorney and counselor has power: * * * (2) to bind his client to any agreement in respect to any proceeding within the scope of his propep duties 'and powers; but no evidence of any such agreement is receivable except the statement of the attorney himself, his written agreement signed and filed with the clerk, or of an entry thereof upon the records of the count”— this court cannot consider the oral stipulations claimed to .have been made by the attorney of the appellant, as the respective counsel differ as to their recollections regarding such oral stipulations. [310] Rule 9 of the rules o-f -this court provides that 15 days before the commencement of -any term of this court all civil causes, except as provided iix rule 8 (which refers to criminal' cases, and civil cases in which the state is a party), shall be placed on the calendar by the clerk in the order of the several judicial circuits. Rule 12 provides thajt in all civil cases, the appellant shall deliver or mail' to the clerk of this court, 20 days before the first day of the term of the court at which the same may be heard, printed abstract of the record, and shall at ,the same time deliver a copy of the same to the counsel for respondent. Rule 14 provides’ that, not less than 20 days before the first day of the term, the counsel for the appellant shall serve upon the cou’nsel of the adverse parity one' copy, an,d shall deliver or mail to the Ol’erk of this court at least xo copies, of his brief. By rule 27 it is provided that a failure to comply with :a.gy„of the requirements contained in these- rules; within the time .therein provided, will in .the discretion of the-court'be "cause for dismissal of the 'appeal. In the case at -bar it was the duty o'f the appellant, under the rules of this court, -to have prepared' ánd served his abstract and briefs prior’ to the October term, 1906. On failure to so file them, the respondents had the right to move for a dismissal of the appeal. It appears, however, from the affidavit of the respondents, that, instead of making such a motion, the parties entered into the stipulation above copied, by which it was stipulated that the case should 'be placed upon the- October calendar, and that the abstract and’briefs should be served therein on or before the 10th day >of November, 1906. No abstract or brief, however, appears to have been filed in this case prior to the making of the motion to dismiss, on the 18th day of June; 1907'. It is further disclosed by the affidavit of the attorney for the respondents that the two years' allowéd by law in which to take an appeal from a judgment had nearly expired at the time this appeal was taken. In view of the fact of the omissi-on of the appellant to file and serve his abstract and briefs prior to the October term, and the delay, of the appellant in filing and serving his. abstract and briefs under the stipulation entered into, the respondents are clearly en [311] titled to a dismissal of the appeal, and the appeal is therefore dismissed. • . WHITING, J., took no part in this decision.