Opinion
No. 30,213.
Filed April 19, 1963.
1. APPEAL — Petition for Extension of Time to File Briefs — Notice — Mandatory Rule — Rules of Supreme Court. — Supreme Court Rule that notice of appellant's petition for extension of time within which to file a brief shall be served upon the opposite party or his counsel at any time before filing is mandatory. Rule 2-16 of the Supreme Court. p. 636.
2. APPEAL — Petition For Extension of Time to Serve — Dismissal — Rules of Supreme Court. — Notice of petition for extension of time within which to file brief, given to co-defendant's counsel, did not constitute notice to defendant or his counsel and since briefs were not properly filed within the time prescribed the appeal as to defendant is dismissed. Rule 2-16 of the Supreme Court. p. 637.
Appellees, Fred O. Baker and Sol Silver, were charged with conspiracy to commit a felony. Trial court sustained their respective motions to quash and appellant, State of Indiana, appeals.
Appeal dismissed as to appellee Baker.
Edwin K. Steers, Attorney General, and Carl E. Van Dorn, Deputy Attorney General, for appellant.
Ole J. Olsen and Olsen Niederhaus, of Evansville, for appellee Baker. Milford M. Miller and W.C. Welborn, both of Evansville, for appellee Silver.
Appellees were charged by an amended affidavit in two counts with conspiracy to commit a felony — embezzlement. The appellees separately filed motions to quash the affidavit, which motions were sustained. Thereupon the state filed this appeal.
Upon submission of its appeal by the filing of a transcript of the record, appellant filed a petition for extension of time within which to file a brief. However, the notice of appellant's petition for extension of time within which to file a brief was not served upon appellee Baker or his counsel prior to the filing of said motion, or at any time, as required by Rule 2-16. Instead, notice was served upon counsel for appellee Silver. Because of the failure of service of notice, appellee Baker has filed in this court a motion to dismiss or affirm this appeal.
Appellant urges that the service of notice given should be considered to have been a good faith attempt to serve notice upon appellee Baker's counsel, which we must assume resulted in actual notice to appellee Baker's counsel. The material portion of Rule 2-16 provides:
"Notice of the application and a copy of the petition shall be served upon the opposite party or his counsel at any time before filing, and proof of service shall be filed with the petition. . . ."
The above cited portion of Rule 2-16 is mandatory. We cannot make compliance therewith, dependent upon the assumption that attorneys of co-defendants will deliver to each other 1. notices which have been served upon only one of them.
Since appellant's brief was not properly filed within the time prescribed, or thereafter within any valid extension of 2. time for such filing, the appeal, as to appellee Baker, is dismissed.
"The appellant shall have 30 days after submission in which to file his brief, and if the brief is not filed within the time limited the clerk shall enter an order dismissing the appeal, unless a petition for extension of time is on file. . . ." Rule 2-15.
Jackson, C.J., Arterburn, Landis and Myers, JJ., concur.
NOTE. — Reported in 189 N.E.2d 580.