Opinion
No. 2101
June 6, 1939
APPEAL AND ERROR — SUPPLEMENTAL ABSTRACT.
1. Where there were deficiencies in appellant's brief, Supreme Court, rather than affirm judgment or dismiss appeal, would authorize filing of supplemental abstract and brief (Supreme Court Rules, rule 37).
APPEAL from District Court, Fremont County; HARRY P. ILSLEY, Judge.
Action by Yellowstone Sheep Company, a corporation, against Lillian G. Ellis. From an adverse judgment, plaintiff appeals. On defendant's motion to dismiss, and on plaintiff's application for permission to file supplemental abstract and brief.
Heard before Riner, Chief Justice; Kimball, Justice; and Burgess, District Judge.
No brief was filed for the appellant. There were oral arguments by H.S. Harnsberger of Lander and F.B. Sheldon of Riverton.
For the respondent there was a brief by A.H. Maxwell of Lander and E.E. Enterline and Madge Enterline of Casper, and oral arguments by Messrs. Maxwell and Enterline.
As it would be impossible to prepare an intelligent answer brief without practically rewriting the abstract of record, we submit this memorandum in support of our motion for affirmance or dismissal of the case. The definition of an abstract is very clearly stated in Halleck v. Bresnahen, 3 Wyo. 73, and Spencer v. McMasters, 3 Wyo. 105. The abstract of record filed by appellant is insufficient and defective. Brewer v. Folsom Bros. Co., 43 Wyo. 433, 5 P.2d 283; Simpson v. Occidental Bldg. Loan Assn. et al., 45 Wyo. 425 at 428-430, 19 P.2d 958; St. Clair v. St. Clair et al., 46 Wyo. 446 at 456-457, 28 P.2d 894; Fryer v. Campbell, 46 Wyo. 491 at 497-498; Scott v. Ward, 49 Wyo. 243 at 250; Harris v. Schoonmaker et al., 50 Wyo. 119 at 144-145, 58 P.2d 415, 60 P.2d 360; Wyodak Chemical Co. v. Board of Land Commissioners of Wyoming et al., 51 Wyo. 265 at 282-283. It seems unnecessary to review the above cases for the reason that the abstract of record in this appeal contains all of the defects dealt with in said cases. We believe the language to be found in the opinion of Wyodak Co. v. Comm., the last case cited by us, is very pertinent and applicable to the case under consideration and that the reasons there given should be followed in the disposition of this case. Appellant wholly failed to comply with rule 14 of this court, requiring brief to contain a statement of the points and authorities relied upon and to refer specifically to the page or portion of the record where the question under discussion arises. When the requirements of rule 14 are disregarded by litigants the court may decline to consider the questions sought to be raised. Simpson v. Building and Loan Ass'n., supra; Houston v. Bell Telephone Co., 66 Law Ed. 961; Marshal v. Marshal (Ore) 223 P. 738. We believe an order should be entered herein, either affirming the judgment or dismissing the appeal.
This case is before the court upon motion to affirm the judgment or dismiss the appeal made by counsel for the defendant and respondent and also upon an application made on behalf of the plaintiff and appellant for an order authorizing the latter to file its supplemental abstract of the record and brief on appeal, and they were argued orally at some length. Our examination of these matters in connection with the record in the case leads us to think that to affirm the judgment or dismiss the appeal would be too drastic a course to be followed under the situation presented.
While the abstract and brief on behalf of the plaintiff and appellant may, and perhaps do, have some short-comings in measuring up to what is contemplated by our rules, we are inclined to think that the disposition of the cause at this time should be: The application aforesaid of the plaintiff and appellant should be granted and the motion above mentioned should be denied; the defendant and respondent will be accorded the usual forty-five day period after receipt of a copy of the order authorized by this opinion within which to file her brief. If it should ultimately appear that any serious omission affecting defendant and respondent's rights has been made in the abstract, that can subsequently be remedied by the defendant and respondent's supplying a supplemental abstract, as provided by Rule 37, and such disposition as to costs can be made by this court as the right of the matter may require.