Wiley v. Shea

OPINION

BY THE COURT:

Submitted on application for rehearing on our order sustaining a motion to affirm the judgment in the above entitled cause because of failure of appellant to file briefs within rule. If leave was granted to appellant to file briefs by October 24, 1940, and such briefs were filed within the time fixed, we would readily sustain the motion for rehearing and vacate our entry of affirmance of the judgment. We would not have sustained the motion merely because counsel for appellant had not served briefs upon opposing counsel, and w.e do not understand that this was a ground of the motion. The application implies, although it does not expressly say, that the entry or authority granting additional time within which to file briefs has been lost. If this is the fact, but Judge Lemert Will approve an entry nunc pro tunc extending the time to file briefs to October 24, 1940, our action on the motion to affirm will be as hereinbefore stated.

We have made our position clear, and inasmuch as the present term may end within a few weeks, it will be well for counsel to act quickly and to get the record in shape. Unless the entry extending time to plaintiff to file briefs is filed promptly with the Clerk of the Court of Appeals of Delaware County, the application for rehearing will be overruled.

HORNBECK, PJ., GEIGER & BARNES, JJ., concur.