Rosenthal v. Smith

OPINION BY THE COURT: Submitted on motion of appellees to dismiss the appeal because of failure to observe Rule VII of this Court, in that the appellant has filed no assignments of error, briefs and bill of exceptions in this Court within 50 days after the notice of appeal. Appellant files a memo in which it is conceded that, basically the motion is well taken, but. it is urged that it should not be sustained because the appellant, since the perfecting of his appeal has-' been inducted into the armed forces of the United States Government, and that counsel have been unable to contact him by reason thereof. The Soldiers’ and Sailors’ Civil Relief Act of 1940 does not accord the benefits thereof to a person in the military service who is represented by legal counsel. Nothing appears in the memorandum to the effect- that counsel for appellant. were not authorized to act for and on behalf of him. as to all requisites incident to' the appeal, including the filing of the briefs, etc. The filing of such- briefs are the work of counsel only, and do not require the. presence nor assistance of appellant. Upon the facts before us at this time, we do not find good cause shown for' the failure of appellant to observe the provisions of Rule VII. Motion- to dismiss sustained. GEIGER, P.T., BARNES & HORNBECK, JJ., concur.