State v. Cecchettini

By the Court, Coleman, J.: The appellants were convicted of a misdemeanor in the Eighth judicial district court. From an order denying a motion for a new trial, and from the j udgment, an appeal has been taken. The transcript on appeal was filed in this court on April 19, 1921. A motion has been made, argued, and submitted to affirm the order and judgment for failure of appellants to prosecute their appeal. Rule 11, par. 1, of this court provides that within fifteen days after the filing of a transcript on appeal in any case the appellant shall file and serve his points and authorities or brief. Paragraph 3 of said rule provides that a failure of either party to file points and authorities or brief within the time prescribed shall be deemed a waiver by such party of the right to orally argue the case. Section 7299 of the Revised Laws of 1912 provides that— “Judgment of affirmance may be granted without argument, if the appellant fail to appear.” On May 11, 1921, appellants obtained an order extending the time for filing their opening brief to June 15. On that date a similar order was entered, extending the time until June 25, when a further extension was granted to June 30. On July 5, after the time had lapsed, an order was obtained extending the time for the filing [241] of the brief to July 10. No further order was granted or applied for; and on July 28, no brief being on file, counsel for the state filed a notice of motion to affirm the order and judgment appealed from. Thereafter, and without leave of court, counsel for appellants, on July 29, filed with the clerk of the court a brief in behalf of appellants. Had counsel failed to file the brief on July 29, there being no other brief on file, our duty to affirm the judgment would be clear, under the section of the statutes to which we have alluded. This court has fiad that, statute, under consideration in two cases. In the first (State v. Myatt, 10 Nev. 163), the court said: “When the appellant fails to appear, we will not grope in darkness in search of some fancied error, in order to show” that the judgment is not sustained by the facts nor supported by the law. And in State v. Chin Wah, 12 Nev. 118, the court disposed of the case in the following words: “This is an appeal from a judgment convicting the defendant of a felony. The time allowed the appellant to argue his case having expired without any appearance on his part,, the j udgment is affirmed in obedience to the provisions of the statute. Comp. Laws, 2109.” Does the fact that counsel for appellants filed a brief after the time allowed therefor and after the notice of motion to affirm the j udgment had been served and filed change the situation? This is the sole question for our determination. Rules relative to the procedure in civil as well as in criminal cases before this court are essential. They are as necessary as are statutes or rules governing the practice in nisi prius courts. Without them no progress could be made in the disposition of the business of the court, except by applying to the court after every move for an order directing the course of procedure, which would be intolerable, as well as cumbersome. The rules which have been adopted are recognized by the court and the bar as applicable to criminal as well as to civil cases. In fact, counsel for appellants, [242] in applying for orders extending the time for the filing of the brief, so construed the rule. If the rule has any force or meaning, it must be subject to a similar construction as is our statute designating the time within which to plead. If such is not the correct interpretation, then the rule might as well be dispensed with as a thing meaning nothing and serving no purpose. Counsel generally are liberal in extending the time for the filing of briefs, when circumstances will permit, and this court is more than generous in that regard, as has been shown in this case; but when a right under the rule is insisted upon, it is our plain duty to enforce it. Under the circumstances of this case, we think the right of appellants to file a brief was cut off by the notice of motion for judgment of affirmance. Such construction must be given the rule, or else there can be no such thing as expediting the disposition of matters on appeal in this court, as counsel might not only be very dilatory, hut might trifle with the court and resort to tactics merely for the purpose of delay and annoyance. A brief might be prepared and held in readiness for filing, but be withheld until a motion to dismiss is made, and then rushed in. We cannot countenance a construction of our rule which would make such a practice possible, especially in view of the ease with which extensions may be obtained upon a showing- of good cause. If authority is needed to sustain our conclusion, we invite attention to the case - of McCabe v. Healey, 139 Cal. 30, 72 Pac. 359, wherein the identical question here presented was involved, the court saying: “The right of the respondent to have the appeal dismissed must be determined by the facts as they existed at the time the notice of the motion was given, and is not destroyed by the subsequent filing of points and authorities on the part of appellant.” See, also, Leatherman v. Orange County, 148 Ind. 282, 47 N. E. 458; 3 C. J. 1439, note 3. While the cases mentioned are civil cases, that can [243] make no difference in the construction of a rule of court applicable alike to both civil and criminal proceedings. We do not desire to be understood as indicating that upon a showing of good cause we might not relieve the appellants of their default. Such, it has been said, would be the proper practice. People v. Busby, 113 Cal. 181, 45 Pac. 191. But there is no application for relief based upon such grounds. Notwithstanding the views expressed, we have given the errors assigned such examination as is justified under the circumstances disclosed, and fail to perceive any prejudicial error in the record. State v. Jorme, 34 Nev. 307, 122 Pac. 483. For the reasons given, the order and judgment are affirmed.