Little Shirley's, Inc. v. Board of Liquor Control ( 1963 )

Duffey, J.

Appellee has filed a motion to dismiss an appeal from the judgment of the Common Pleas Court of Franklin County. The trial court affirmed the orders of the Board of Liquor Control for suspension and revocation of appellant’s permit. The notice of appeal was filed October 23, 1963. Pursuant to Eule VII (2) (a), Eules of the Courts of Appeals, appellant has fifty days from that date to file his assignments of error and brief. Neither has yet been filed.

The memorandum attached to appellee’s motion contains many statements of fact which we will assume are of record. On the basis of these facts, appellee contends that “appellant has not, and cannot, state any question of either law or fact for this court to consider.”

It is apparent that appellant has not and need not yet present any questions for review. He has not yet had an opportunity to present his case and his time to do so has not yet expired.

Appellee is requesting this court to examine into the merits of an appeal on preliminary motion when only a notice of appeal and the record have been filed and before assignments of error and brief are due.

The basic function of the motion to dismiss is to raise preliminary issues not related to the merits which do, or in the court’s discretion may, dispose of the appeal. The usual grounds are jurisdiction, lack of prosecution or noncompliance with rules — none of which is involved here. If appellee is concerned with the time lapse, there are measures available. Where a case is of grave enough importance, this court can and has suspended its rules. Of course, even then a fair opportunity must be provided to the parties to present their case. Further, appellee may itself expedite the case greatly simply by promptly fulfilling its own function and placing this case in a position where it is ready for submission to the court. Appellee may also request a preference in assignment for hearing. From the time the attorneys are ready to submit a case, this court regularly assigns and hears the case in less than six weeks, and frequently in a shorter period. In addition, where oral argument is waived, a case is automatically submitted immediately.

If appellee’s complaint is that the appeal is frivolous, the accusation is obviously premature.

The motion to dismiss is overruled.

Motion overruled.

Duffy, N. J., and Bryant, J., concur.

(Decided February 18, 1964.)