Sagasser v. Wynn

Howk, J. — On the 24th day of March, 1883, the appellees; moved this court in writing to dismiss the appeal in this case,, for the reason that the appellant had failed to file any brief herein within sixty days after the submission of the cause, as-required by Rule 14 of the rules of this court. Rule 14 provides that “ Where a cause is submitted on call or by agreement, the appellant shall have sixty days in which to file a brief, and if not filed within the time limited, the clerk shall enter an order dismissing the appeal, unless the appellee shall have filed with the clerk a written request that the cause be passed upon by the court.” The record shows that this cause was submitted by agreement, on the 28th day. of November, 1882. No brief was filed by the appellant within sixty days after such submission of the cause; nor did the appellee file with the clerk a written 227 request that the cause be passed upon by the court. It is clear, therefore, that, under'the rule, an order ought to have been entered, at the expiration of sixty days after the submission, for the dismissal of the appeal; but no such order was then entered. Afterwards, on the 17th day of March, 1883, and before the appellees filed their motion to dismiss the appeal because of the appellant’s non-compliance with Rule 14, the appellant filed his brief of this cause. It will be seen that the facts of this case are very similar to those stated in the opinion of the court, in Murray v. Williamson, 79 Ind. 287. The court there said: “ The fact that a brief has since been filed for the appellant is no answer to the appellee’s motion. He has the right to have the appeal - dismissed.” Upon the authority of the case cited, it must be held that the appellees ’ motion to dismiss the appeal, in this case, must be sustained. The appeal is dismissed, at the appellant’s costs.