Union Pacific Railroad v. Grace

Scott, Chirp Justice.

The defendant in error moves this court to dismiss this case upon the ground that plaintiff in error failed to file and serve its brief within sixty days after filing its petition in error as provided by rule 15 of the rules of this court. The record discloses that the petition in error was filed on August 30, 1913, and plaintiff’s brief was filed on November 13, 1913, or 75 days after the filing of the petition in error. No extension of time was applied for or granted within which to file such brief. On December 27, 1913, the defendant in error, by his attorney, without motion to strike plaintiff’s brief or to dismiss the proceedings, filed in this ‘court his application for an extension of time within which to file his brief. It will be observed that the defendant in error’s application was filed 44 days after plaintiff in error’s brief was filed, or 14 days after defendant in error’s brief was due under the rule.

The filing of a brief out of time is not jurisdictional and may be waived by the parties. (Meade Plumbing, Heating & Lighting Co. v. Irvin, 77 Neb. 391, 111 . W. 636; Hart v. Murdock et al., 80 Neb. 274 , 114 N. W. 268 ). The parties may stipulate as to the extension of such time, and by so doing bar themselves from invoking the rule. (Connor et al. v. Zachry, 54 Tex. Civ. App. 188 , 115 S. W. 867 ; 117 S. W. 177 ; Wiseman v. Maddox (Tex. Civ. App.) 135 S. W. 756 ). To entitle the defendant in error to a strict application of the rule he must stand strictly within its provision. In other words, he must make his motion upon the non-compliance of his opponent with the rule and not recognize the brief which is filed out of time other than by motion to strike or to dismiss the proceeding in error. (Good v. Daland, 119 N. Y. 153 , 23 N. E. 474 ). In the case here the defendant in error made and filed his *237 application to this court for an extension of time within which to file his answer brief to one which had been filed out of time, and by so doing waived his right to a dismissal of the petition in error. In principle this view is supported by numerous decisions. (Henry v. Traveler’s Ins. Co. 16 Colo. 179 , 26 Pac. 318 , 319; Houston v. Witherspoon, 68 Miss. 188 , 8 So. 515 , 516; Jones v. Henderson, 149 Ind. 458 , 49 N. E. 443 ; Mason v. Phelps, 48 Mich. 126 , 11 N. W. 413 , 414, 837; Lamet v. Miller, 68 Cal. 521, 522 ; Asch v. Wiley, 16 Neb. 41 , 20 N. W. 21 , 22; Yates v. Thompson, 44 Ill. App. 145 ; Barhem v. Livingston, 11 La. Ann. 604 ; Durfee v. McClurg, 5 Mich. 532 ). It follows that the motion must be, and it is hereby, denied. The defendant in error is granted 45 days from this date within which to file and serve his brief.

Beard, J., concurs. Potter, J., did not sit.