Opinion
No. 5312.
June 5, 1929.
APPEAL from the District Court of the Fifth Judicial District, for Bear Lake County. Hon. Robert M. Terrell, Judge.
Motion to dismiss appeal. Denied.
John A. Bagley, for Appellants, cites no authorities.
D.E. Haddock, for Respondent.
A long line of authorities in California holds that upon failure to file briefs in time allowed therefor, the judgment will be affirmed; if, however, due to unavoidable casualty or overwhelming necessity, the rule seems to be that the delay is excusable. ( Cook v. South Omaha Nat. Bank, 13 Wyo. 187, 79 Pac. 18; Santa Rosa Bank v. Striening, 1 Cal.App. 515, 82 Pac. 551.)
The transcript on appeal in this cause was filed in this court on August 18, 1928. Respondent, on January 19, 1929, filed herein its motion to dismiss the appeal upon the ground that appellants had failed to serve or file their brief or secure extension of time therefor. On January 18, 1929, however, appellants had filed their application for extension of time for that purpose, which application was granted on January 25, 1929, without prejudice to respondent's rights under the motion to dismiss.
Rule 43 of this court requires that appellant shall serve brief upon respondent within forty days after the record is filed in this court, and that for failure so to do the court, among other things, may at its discretion continue or dismiss the appeal or impose terms on the party in default.
The affidavit accompanying appellants' application for extension of time, showing a prolonged and serious illness of appellants' attorney and in his family, was sufficient to justify the extension of time for preparing and serving the brief, but does not contain an adequate excuse for failure to apply for extension within the time provided by the rules. Briefs of both parties have since been filed, and no actual delay in reaching the cause upon the calendar has been involved. The motion to dismiss is denied, but upon the terms that appellants shall be allowed no costs upon appeal if they shall prevail upon the merits.
Givens, T. Bailey Lee, Wm. E. Lee and Varian, JJ., concur.