J. M. Pearson et al. v. Household Sewing Machine Company.
No. 3240.
Buies of Supreme Court—Briefs.—A failure to file a brief in the District Court, as prescribed in Rule 37 of Rules for the Supreme Court, is a ground for dismissing the appeal. Rule 39.
Appeal from Hopkins. Tried below before Hon. E. W. Terhune.
This is a motion to dismiss the appeal. The motion is as follows:
*386“And now comes the appellee, the Household Sewing Machine Company, and moves the court to dismiss the appeal in this cause for the following reasons, to-wit: Because the appellants have failed to file a brief in this cause in the District Court of Hopkins County twenty days prior to the first day of the third assignment, to which it was returnable, to-wit, the 3rd day of November, 1890, and failed to file any brief in said District Court of Hopkins County, and have not as yet filed any brief or briefs in this court or presented any brief to counsel for appellee.
“That two weeks ago J. A. B. Putman, sole counsel for appellee, went to the office of the district clerk of Hopkins County and called on the clerk to see and examine brief of appellants, so that he might prepare a brief for appellee; that no such brief was on file among the papers of said cause, and said counsel was informed by said district clerk that appellants had abandoned their intention of carrying the case to this court; that this counsel for appellee again on Saturday, the 1st day of ¡November, 1890, made inquiry and search at the office of the district cleric of Hopkins County for such brief of appellants, and the same could not be found among the papers of this cause, and this counsel says he was then again informed by the district clerk of Hopkins County that no such brief had ever been filed, and that appellants had abandoned their appeal, and this counsel fully believed such information, and was not informed to the contrary until appellant’s counsel informed him on yesterday that he would make a motion to file the transcript.” * * *
The answer to the motion is as follows:
“And now comes the appellant, and in answer to appellee’s motion herein to dismiss for failure to file brief herein he shows that such brief is here filed and was filed within two hours from the time of leave granted to file the same; and he here denies any knowledge further of the matters complained of further in said motion. He here asks the court to postpone this cause so as to give appellee’s counsel ample time to suit their convenience to examine and brief this case; and as no damage has accrued herein to appellee he asks said motion be refused.”
J. A. B. Putman, for motion.
W. R. Harris and V. H. Blocker, for appellants, resisting- motion.
STAYTON, Chief Justice.
—The appeal in this case was perfected on December 19,1889, but no brief was filed in the office of the district clerk, but on the 6th of the present month a brief was filed here, which in no respect complies with the rules.
On motion to dismiss appeal because of failure to file brief in time prescribed, although an answer to the motion is filed, no excuse is given for *387failure to file the brief, and the motion shows the inconvenience to adverse counsel resulting from the neglect of appellants.
Rules 37 and 39 are intended for their protection, and the latter now requires that this appeal be dismissed for failure of appellants properly to prosecute their appeal.
It is ordered that the appeal be dismissed.
Appeal dismissed.
Delivered November 11, 1890.