Stuyvesant Insurance v. United Public Insurance

Bierly, J.

— James L. Tuohy, Special Deputy Attorney General of the State of Indiana, as counsel for Donald M. Mosi-man, Special Deputy Insurance Commissioner of the State of Indiana, as Liquidator of United Public Insurance Company, Appellee, filed on May 27, 1966, a verified petition entitled, “Petition by Appellee to File Late Brief,” therein setting forth that appellant had filed its brief on January 16, 1965. Petitioner further states that according to the Supreme Court Rules, appellee’s brief should have been filed on June 16, 1965.

That due to an oversight the petitioner, on reviewing the files dealing with insurance companies under liquidation with the Special Deputy and Insurance Commissioner, did not become aware until October 10, 1965, that appellee’s brief should have been filed on or before June 16, 1965.

That upon investigation, petitioner was lead to believe that there was no existing procedure for appellee to file an appel-lee’s brief after the expiration of time.

Appellee further, in said petition, states that during oral argument on May 25, 1966, a suggestion was made from the bench, that, under extraordinary circumstances, the court upon petition, may circumvent such rule if the court be warranted in doing so.

Appellee further stated, in said petition, that due to the congestion in the office of the Attorney General involving insurance companies, due solely to an oversight and inadvertence, the due date of filing appellee’s answer brief was overlooked.

That due to the size of the judgment, in the case at bar, and the cause being a matter of great public interest appellee prays the court to empower it to file within thirty (30) days a brief on behalf of the appellee seeking to sustain the judgment of the trial court.

As of this date, appellant has filed no answer to appellee’s verified petition, and we assume that due to the time elapsed since the filing of said petition, no answer will be forthcoming.

An order of the court directing an appellee to file an answer brief under certain circumstances and conditions is amply supported. From Indiana Trial and Appellate Practice, by Wiltrout, (1963) Pocket Parts § 2681, we quote as follows:

“Where an appellee fails to file a brief, the court may, in its discretion, take different courses of action: (1) it may order the appellee to file a brief; (2) it may consider the questions presented without aid of an appellee’s brief; (3) it may reverse the judgment or award if apparent or prima facie error is shown by appellant’s assignment of errors and brief.”

In an early case of Cleveland, etc., R. Co. v. Wuest (1907), 40 Ind. App. 693, 82 N. E. 986, the court held that even though the appellee has filed no brief the court may order the appellee to file one to prevent a hardship to appellee because of the failure of his attorney to discharge his duty.

In a later case, Warren Company, Inc. v. Exodus (1944), 114 Ind. App. 563, 53 N. E. 2d 546, (Opinion by Flanagan, J.) the court held that, due to an ineffective answer brief by appel-lee the administration of justice will be best served in the appeal if the court has the benefit of an answer brief on the merits. In that case, the court ordered the filing of an appel-lee’s answer brief on the merits, and continued the case to permit the carrying out of that order.

We cite also the case of Silverstein et al. v. Central Furniture Co., Inc. (1958), 129 Ind. App. 166, 154 N. E. 2d 526, wherein the court held that appellee’s answer brief failed to attack the appellant’s charged errors that the decision of the court is not sustained by sufficient evidence, and is contrary to law; thence, the court ordered appellee to file a brief in order that the court may have the benefit of appellee’s answer brief on the merits.

Appellee, in the case at bar, appeared and participated in the oral argument and frankly admitted that its interpretation of Rule 2-15, of the Supreme Court Rules of Indiana, was to the effect that unless action was taken by due date to file an answer brief, appellee by such rule was precluded thereafter to file an answer brief. With this interpretation, we are in accord.

And the court now finds that by the failure of compliance with Rule 2-15, of the Supreme Court Rules of Indiana, appellee’s verified petition to file a late brief, should be denied.

Petition of appellee to file late brief under Rule 2-15 is hereby denied.

The court is of the opinion that this cause is of such public interest and importance, and that the administration of justice will be best served in this appeal, if this court has the benefit of an answer brief by appellee on the merits.

Therefore, final action on this appeal is hereby continued, and appellee is given thirty (30) days in which to file an answer brief on the merits, and appellant is given twenty (20) days thereafter to reply.

Hunter and Mote, JJ., concur.

Smith, C.J., dissents with opinion.