Hoke v. State ex rel. Payne ( 1935 )

OPINION

By THE COURT

On May 25, 1935, the defendant in error filed a motion in this cause to dismiss the petition in error, for the reason that no bill of exceptions has been filed. There is no proof of service of a copy of this motion upon counsel for the plaintiff in error. On June 26, 1935, the plaintiff in error filed a motion to strike from the files the motion above referred to as having been filed by counsel for the defendant in error to dismiss the cause for failure to file a bill of exceptions. The matter is now submitted upon the motion of the plaintiff in error.

Rule 14 of the Rules of Practice in the Court of Appeals is as follows:

“No motion will be heard until proof of notice to opposite counsel of the filing and time for hearing such motion is filed with the clerk.”

This rule is self explanatory, and according to its terms the motion of defendant in error to dismiss the petition in error can not be heard until notice of the filing of the same is served upon counsel for the plaintiff in error. Since notice was not served upon counsel for plaintiff in error, the court is' of opinion that the motion to strike defendant in error’s motion from the files is well taken and should be sustained. Of course, there is nothing to prevent counsel for the defendant in error from filing a new motion setting forth the same grounds, and having a copy of the same served upon opposite counsel. Exceptions.

BARNES, PJ, HORNBECK and BODEY, JJ, concur.