Peek v. Peek

Hayne, C. —On October 5th the court ordered that the cause be submitted on briefs to be filed, the appellant to file his opening brief within thirty days, the respondent to have thirty days to answer, and the appellant ten days to reply. The .appellant neglected to file his opening brief, and on November 26th the respondent filed a document which contained no argument, but simply called attention to the defendant’s default,- and asked that the judgment and order be affirmed. About three weeks after this the appellant’s counsel, without (so far as the record shows) having obtained any extension of time either from the court or counsel, and without the permission of the court, and without offering any excuse for their default, placed their brief on file; and in this condition of affairs the case is sent to us for examination.

The rule is, that where the appellant neither makes an oral argument, nor files any brief, the court will affirm the judgment without an examination of the record. (Hickinbotham v. Monroe, 28 Cal. 489; Brewster v. Johnson, .51 Cal. 222; Paris v. Lampson, 14 Pac. Rep. 674; Scott v. Sowden, 16 Pac. Rep. 768, filed February 21, 1888.) The respondent, having waited a reasonable time after the default of appellant, had a right to invoke this rule without submitting an argument on the merits, there being nothing for him to reply to. And although we think it would have been better for him to have submitted an argument upon the merits, or to have ascertained the intention of opposing -counsel as to filing a brief, he is not in default for not doing so. But there being a brief on file for appellant, although improperly so, we think it would be harsh to apply the rule invoked by respondent. But the respondent, not being in default, has a right to be heard, and we do not think the [300]cause should be disposed of in the absence of an argument in his behalf.

The cause of the waste of time and labor occurring in this case is the neglect of the appellant’s counsel. They had no right to disregard the order of the court as to the time of filing briefs. The dispatch of business requires some order in the proceedings. And the learned counsel for the appellant will readily see that if they are at liberty to disregard the orders and rules of the court, every other counsel would be equally at liberty to do so, which would produce an undesirable confusion.