DocketNumber: No. 10,577
Citation Numbers: 71 Ind. App. 548
Filed Date: 12/11/1919
Status: Precedential
Modified Date: 7/24/2022
— This appeal is from a judgment rendered on May 23, 1918. Notice of the appeal was served on the clerk of the trial court April 12, 1919, and on the appellee April 24, 1919. The transcript was filed on May 21, 1919. The cause was submitted
The following is the substance of the petition: “William D. Frazer is the senior member of the firm of Frazer, Frazer & Headley, and is General Counsel for the appellant. In the trial of the cause he was assisted by Lemuel W. Boyse, of Warsaw, and William B. Hess, of Plymouth. When it was determined to appeal the cause, the preparation of appellant’s brief was assigned to him (W. D. Frazer). He was aware of the rule of court which provides that when a cause is submitted notice shall be given to one at least of the attorneys representing the appellant; and he relied on that rule and supposed that he would receive notice of the submission. He did not forward appellant’s brief until October 3, 1919. On Oct. 4, 1919, he was informed by one of appellee’s attorneys that the cause had been submitted on June 22, 1919. He has- received no notice of the submission, and no notice thereof has come to the office of the firm of Frazer, Frazer & Headley. He is informed by bis co-counsel that neither of them has received notice of the submission. By reason of. the failure to receive notice of the submission he was misled as to the time within which appellant’s brief should have been filed. He had no notice of the submission until Oct. 4, 1919.
■ “Wherefore, he asks that the submission be set*550 aside and vacated and that permission he granted to file appellant’s brief.”
The appellee has filed a motion to dismiss the appeal on the ground that appellant’s briefs were not tiled within the time fixed by the rule of court.
It should be observed and realized that the clerk is required to do nothing more than to mail the notice. There is no contention that the clerk failed to discharge that duty. It is apparent that counsel might have computed the time of submission for themselves. In cases like the one at bar the mailing
The appeal is dismissed.