November 14, 1933
APPEAL AND ERROR — WORKMEN'S COMPENSATION LAW — BRIEFS — STATUTORY CONSTRUCTION — WORDS AND PHRASES — SUPREME COURT RULE.
1. Appeal from compensation award should not be dismissed on ground that brief and abstract of record were filed after expiration of 15 days from date when record was filed, where brief and abstract were filed within 15 days after expiration of 70 days allowed for filing record, and statute governing procedure was ambiguous (Rev. St. 1931, Sec. 124-114). 2. Word "thereafter" in statute providing that record on appeal from compensation award must be filed within 70 days from date of decision unless time extended, and 15 days shall be allowed thereafter for filing brief, while perhaps intended to mean that brief and abstract of record must be filed within 15 days from date of filing record on appeal or petition in error, creates an ambiguity that should be corrected by court rule.
APPEAL from the District Court of Platte County; SAM M. THOMPSON, Judge.
For claimant's motion to dismiss there was a brief by Ray E. Lee, Attorney General, O.O. Natwick, Deputy Attorney General, and W.C. Snow, Assistant Attorney General of Cheyenne, Wyoming, and oral argument by Mr. Lee.
The statute (124-114 R.S. 1931) requires appellant's brief to be filed within fifteen (15) days after the record on appeal is filed in any case. In the present case the brief of appellant was not filed until sixteen (16) days after the record on appeal was filed. Failure to file brief within time is ground for dismissal. Robertson v. Shorow, 10 Wyo. 368; Ford v. Townsend, 22 Wyo. 397; Small v. Johnson County Savings Bank, 16 Wyo. 126; Cook v. Bank, 13 Wyo. 187; Brown v. Brown, 29 Wyo. 60; Lobell v. Oil Company 21 Wyo. 342; Board of Commissioners, 23 Wyo. 207; Bank v. Stout, 24 Wyo. 106; Sheep Company v. Oil Company, 29 Wyo. 59; Atkins v. Hunsaker, 29 Wyo. 411; Nelson v. Sunset Oil Co., 36 Wyo. 245; Inman v. City of Cheyenne, 40 Wyo. 72. The motion to dismiss should be sustained.
For the employer and appellant, there was a brief resisting motion to dismiss, and oral argument by William E. Mullen, of Cheyenne, Wyoming.
Nine of the cases cited in support of the motion, relate to the operation of Supreme Court Rule No. 15, and the other three cases cited relate to other Supreme Court rules that have nothing whatever to do with appeals in compensation cases. There is no Supreme Court rule relating to the filing of briefs in compensation cases. Supreme Court Rule No. 35 relating to the filing of records on appeal, provides that it shall not apply to compensation cases because the statute fixes a different and definite time for filing such records in the Supreme Court. The statute relating to compensation appeals at the time this rule was adopted (4328 C.S. 1920 as amended by Section 2 of Chapter 124 Laws 1925) required the appeal record to be filed within thirty (30) days from date of decision unless time was extended and allowed all parties thirty (30) days thereafter to file briefs. In the preparation of Rule No. 35, this Court construed the foregoing statute as fixing a definite time for filing appeal records in compensation cases, so the word definite" was used in the rule. The word "definite" means something having certain or distinct limits; fixed; exact; clear. (Webster's International Dictionary — 382.) The word "definite" as used in the rule means thirty (30) days from the date of the decision or order unless time be extended. The statute then allows all parties thirty (30) days for the filing of briefs after this definite time fixed by statute. The statute extending the time for filing records on appeal in compensation cases to seventy (70) days was enacted in 1931, Chapter 73, Section 59. It allows appellant fifteen (15) days for filing and serving his briefs and respondent fifteen (15) days thereafter to file his briefs. The word "thereafter" as used in the statute must relate to a definite period in order to avoid confusion. The Clerk of the Trial Court prepares and files the record on appeal in Compensation cases in the Supreme Court. If counsel for appellant is to be bound from the particular day the Clerk may choose to file the record, it would lead to endless confusion, since the record might be in the Supreme Court fifteen (15) days before appellant's counsel would know anything about it. The only definite times fixed by statute for filing appeal records in compensation cases is the seventy (70) day period, or any extension thereof allowed by the court. Where an act is required to be performed within a definite time, the full period of time is ordinarily allowed for its performance, and where others are required to act in relation to such performance, the time to act is fixed to begin at the expiration of the time fixed for the other party to perform. This court recognized the necessity of following this principle in its formulation of Supreme Court Rule No. 15, which allows appellants a full sixty (60) day period for briefs and respondents full forty-five (45) days after the expiration of such sixty (60) day period to file briefs. The object of briefs is to secure orderly disposition of court business. Robertson v. Shorow Company, 10 Wyo. 368; Krivokapich v. Owl Creek Coal Co., 41 Wyo. 9; 281 P. 195; Marsh v. Aljoe, 41 Wyo. 119, 282 P. 1055; Lion Coal Co. v. Contas, 42 Wyo. 59, 289 P. 368. In this case the Clerk of the trial court filed the record on August 3d, or one day before the expiration of the seventy (70) day period. Appellant's briefs were filed on August 19th, and within fifteen (15) days from the expiration of the seventy (70) day period, but as it happened, sixteen (16) days after the date upon which the Clerk filed the record in the Supreme Court. The motion is based upon the theory that the fifteen (15) day brief period commences on whatever day the Clerk of the District Court might happen to file the appeal record in the Supreme Court, and as there is no provision for notifying counsel, the extremely short brief period of fifteen (15) days allowed in these cases might expire without counsel's knowledge. The motion should be denied.
This is a case arising under the Workmen's Compensation Laws of this State, and the respondent, through the Attorney General, has filed a motion to dismiss the direct appeal proceeding instituted by appellant, to review an order of award made by the District Court of Platte County in favor of respondent, claimant below.
The motion to dismiss is grounded upon the conceded facts that the record on appeal was filed in this court on August 3, 1933, and that the abstract of record and brief of appellant were not served upon the respondent or filed here until August 19, 1933.
The statute dealing with the point raised is that part of section 124-114, Wyo. Rev. St. 1931, reading:
"Any order given and made in any investigation or hearing by a court or judge pursuant to the provisions of this chapter, shall be reviewable by the state supreme court on proceedings in error in the manner prescribed by the code of civil procedure; provided, however, that the petition in error, bill of exceptions and record on appeal must be filed in the supreme court within seventy (70) days from the date of decision or order on motion for new trial by a court or judge, unless the time be extended by order of court or judge; and fifteen (15) days shall be allowed plaintiff in error thereafter for filing brief, and fifteen (15) days thereafter shall be allowed defendant in error for filing brief, and said appeal shall be advanced on the calendar and disposed of as promptly as possible."
The contention is made for respondent that the fifteen day period allowed by law to the appellant for filing its brief and abstract of the record commenced to run from the date of filing the record here and, consequently, appellant was one day late in these filings. Appellant, however, insists that the aforesaid period fixed by the statute for the filing of brief and abstract did not commence until after the expiration of the seventy days allowed for filing the record in this court and, inasmuch as that time did not lapse until the 4th of August, 1933, its brief and abstract were properly filed on the 19th.
It is plain from an inspection of the language of the statute, as quoted above, that in the use of the word "thereafter," the law is ambiguous and either contention of the parties might, within its terms, be properly upheld. For that reason, we must decline to sustain the motion to dismiss in this instance — the first time the point has been drawn to our attention. We do not feel that any litigant should be penalized relative to a non-jurisdictional matter and lose his right to a hearing on the merits of his case when the law regulating the procedure to be followed is so uncertain. We do, however, propose to remedy the matter for the future so that parties litigant may not be thus hereafter troubled.
In ordinary civil and criminal cases brought here by direct appeal, our Rule 15 provides that the time for filing appellant's brief is "within sixty days after the filing in this court of the record on appeal." It may be mentioned, also, that the practice, under the statute quoted above, before its amendment by sec. 59 of ch. 73, Laws of Wyo. 1931, seems to have been generally, to file all briefs within thirty days after the record on appeal was filed in this court, thus harmonizing the procedure with that prescribed by Rule 15, aforesaid. That the time for filing appellant's brief and abstract, under the present law, should run from the date of filing the record on appeal in this court, we entertain little doubt, when it is recalled that, as repeatedly pointed out in our previous decisions, it is the purpose of the Workmen's Compensation Act to obtain as speedy a disposition by the courts of all questions arising therein under it, as is reasonably possible. See Martini v. Kemmerer Coal Co., 38 Wyo. 172, 265 P. 707; Standard Oil Co. of Indiana v. Buchanan, 39 Wyo. 372, 271 P. 876; Lion Coal Co. v. Contas, 42 Wyo. 94, 291 P. 314.
Additionally, it may be noted that the statute says nothing whatever about the service of briefs, a matter which should not be left in doubt.
Accordingly, we have adopted, to take affect as of January 1st, 1934, the following rule of which, parties and counsel in Workmen's Compensation cases will hereafter be expected to take cognizance:
"In workmen's compensation cases brought to this court by proceedings in error or direct appeal, the plaintiff in error, within fifteen days after the filing of the petition in error, and the appellant, within fifteen days after the filing of the record on appeal, in this court, shall file with the clerk four copies of his brief, and shall also within that period serve upon or mail to the opposite party or his attorney of record, and, unless it be the Attorney General's brief, also serve upon or mail to the Attorney General, one other copy of such brief; within fifteen days after the expiration of said fifteen days, the defendant in error or the respondent, shall file with the clerk four copies of his brief, and shall also within that period serve upon or mail to the opposite party or his attorney of record one other copy of such brief. Immediately upon receipt of a record on appeal, the clerk shall by letter notify the appellant or his attorney of record, and also the Attorney General, of that fact."
An order will be entered allowing respondent fifteen days from this date within which to file his answering brief on the merits.
Motion to dismiss denied.
KIMBALL, C.J., and BLUME, J., concur.