Thomsen v. Keil

ON MOTION TO STRIKE AND PETITION FOR REHEARING February 9, 1925. 232 P. 1080. OPINION Counsel for appellant has moved to strike from the files of the court the reply of respondent to the petition for a rehearing upon the ground that (1) it was not filed within the time allowed by the rules of the court; and (2) for the "reasons that the said reply is sham, frivolous, and irrelevant, and that the same is scandalous, disrespectful to the above-entitled court, and is an unwarranted and libelous reflection upon counsel for appellant."

We will not consider the first reason, since we think the motion should be granted on the ground that the reply is frivolous. The opening paragraph of the reply reads:

"It is with much regret that we take up the task of replying to the alleged petition for rehearing on this appeal. Regret that we should even find it necessary to read a scurrilous screed, composed almost wholly of balderdash and billingsgate, falsehood and fiction, abuse and vile and contemptuous insinuations, against not only the defendant and his witnesses and counsel, but also against the trial court, which rendered its judgment in favor of the defendant, and the members of this court, which affirmed that judgment."

Throughout the reply many such statements may be found.

We will not undertake to pass upon the merits of the statements quoted. Be they true or false we can see no justification or excuse for the use of such language, either in an oral or a written argument. Certainly a court, engaged in the consideration and disposition of serious matters, should not have its time taken up by having to read such charges. Such language can in no way aid the court in solving the problems presented, and its mind should not be influenced against a litigant or counsel, or diverted from the real purpose of its undertaking. 3 C.J. 1432, 3; Green v. Elbert, 137 U.S. 615, 11 S.Ct. 188,34 L.Ed. 792. Incidentally we may say that, if counsel for respondent is of the opinion that the petition for a rehearing contains scurrilous matter, he should have attacked it by a motion to strike rather than attack counsel for appellant.

We think the reply to the petition should be stricken.

It is so ordered.

ON PETITION FOR REHEARING