CASE 11. — ACTION BETWEEN LOUISVILLE HOME TELEPHONE COMPANY AND JOHN D. GASPER AND OTHERS ON MOTION TO DISMISS APPEAL. — February 22.

#### Louisville Home Telephone Co. v. Gasper, &c.

Motion to dismiss appeal made by appellee in the Appellate Court .

Motion overruled.

Appeals — Rules oí Appellate Court — Under rule 3 of this court requiring appellant to file his brief twenty days prior to the day the case is set for hearing, and the appellee to file his brief ten days prior to that time, where a case was set for hearing for February 20, the appellant on February 16, with-' out having filed a brief, entered a motion for oral argument. The court sustained the motion without observing that appellate brief was not filed. On the call of the case on February 20 appellee entered a motion to dismiss the appeal. Held— By the letter of the rule the appeal should be dismissed without prejudice, but the court in order to malse the rule operate equally on both appellant and appellee, if we treat the grounds filed for an oral argument as a brief, the appeal will not now be dismissed, but appellant will be adjudged to pay the costs of the appeal up to this time, and the order heretofore entered continuing the case for oral argument will stand.

HELM, BRUCE & HELM for appellant.

CARUTH, CHATTERSON & BLITZ for appellees.

OpinicN by

Judge Hobson

— Overruling.

Appellee bas entered a motion to dismiss the appeal because appellant’s brief was not filed in time under rule 3 of this court, which is as follows: “That in all cases or appeals hereafter filed, or now filed and uot submitted, it shall be the duty of the appellant *86to file his brief twenty days prior to the day the case is set for hearing, and the appellee to file his brief ten days prior to that time, and a failure to do so by the appellant shall cause a dismissal of the appeal without prejudice; and upon the part of appellee, he will, if in default, be required to pay the costs up to the date of filing his brief. No oral argument will be ordered or heard on the part of the party, in default unless his brief is filed as herein provided. When the briefs are in, or the brief of the party not in default, an oral argument will be ordered if desired, and a time fixed for the hearing. ’ ’

It will be observed that the rule requires the appellant to file his brief twenty days before the day the case is set for hearing and the appellee to file his brief ten days before that time. It provides that if the appellant fails to file his brief as required it shall be cause for the dismissal of the appeal without prejudice, and that if the appellee is in default he will be required to pay the costs up to the date of filing his brief. No oral argument under the rule will be ordered or heard on the motion of the party in default unless a brief is filed. The case was set for hearing on the docket for February 20th. The appellant on February 16th, without having filed a brief theretofore, entered a motion for an oral argument and filed grounds in support of the motion. The court sustained the-motion without observing that the appellant’s brief was not filed. On the call of the case on February 20th the appellee entered a motion to dismiss the appeal.

By the letter of the rule the appeal should be dismissed without prejudice; but the court, in order to make the rule operate equally on both appellant and appellee, has heretofore adopted the practice of ad*87judging tlie appellant to pay the costs of the appeal up to that time where he had filed a brief, hut his brief whs not filed in time. If we treat the ground filed for oral argument as a brief, the appeal will not be now dismissed; but appellant will be adjudged to pay the costs of the appeal up to the time, and the order heretofore entered continuing the case for oral argument will stand.

Motion overruled, at appellant’s cost.