State Ex Rel. McPherson v. Rakey

Garfield, J.

Plaintiff's motion to dismiss the appeal alleges that the proceedings for commitment of a feeble-minded person provided by chapter 171, Code, 1939, are special proceedings and no right of appeal to this court is granted by any statute or rule of this court.

Rule 348(a), Rules of Civil Procedure, provides:

“Appellee’s motion to dismiss an appeal must be * * * served on appellant and filed with the Clerk of the Supreme Court within ten days after filing the Record, if the grounds •therefor then exist.”

Appellee’s motion to dismiss the appeal was not served upon appellant or his attorneys within ten days after filing the record. It is apparent that the grounds for the motion existed when the record was filed. Since the motion was not served upon appellant or his attorneys within ten days after filing the record, as required by Rule 348(a), appellee is not entitled to have its motion to dismiss considered and it should be overruled. — Motion to dismiss appeal overruled.

Hale, C. J., and Bliss, Oliver, Wennerstrum, Smith, Mantz, and Mulroney, JJ., concur.