James C. Curtis & Co. v. Emmerling , 218 Ind. 172 ( 1941 )

ON PETITION FOR REHEARING. This court has been asked to reconsider the order of dismissal heretofore entered in this cause. One of the reasons assigned in support of the petition for rehearing is that we failed to make any reference to the opinion of the Appellate Court filed in this cause on March 27, 1940. The appeal was originally to the Appellate Court. That tribunal entered an order of dismissal on other grounds. (25 N.E.2d 1008.) Thereafter, a petition for rehearing was granted, and the cause transferred here under § 4-209, Burns' 1933, § 1364, Baldwin's 1934, four judges failing to agree. On this state of the record, the opinion of the Appellate Court was nullified and we would not be authorized to examine it for errors.

Throughout this appeal the attorneys for appellant have consistently maintained that they were not required to serve the opposing party or counsel with a copy of appellant's brief, 4. because said brief was printed as distinguished from typewritten. Affidavits have been presented by both parties, calculated to establish the existence or the non-existence of a custom in the community where attorneys herein practice, respecting the service of copies of briefs. In view of the mandatory character of Rule 20, 1937, as we have interpreted it, this court could not be bound by any local custom, if one existed. In that connection, we do not deem it impertinent to remind attorneys for the appellant that the records of this court disclose that on July 18, 1939, they filed in this court a printed brief in a term time appeal accompanied by proof of service of a copy on counsel for the appellee therein. (See record in Roth v. Local Union No. 1460 of Retail ClerksUnion, No. 27254.) This circumstance is highly persuasive that attorneys for appellant were not unfamiliar with the proper construction of Rule 20, and that they were not misled by local custom.

Rehearing denied.

NOTE. — Reported in 31 N.E.2d 986.