
    Town of Shirley v. Brewer.
    [No. 6,581.
    Filed December 8, 1909.]
    
      Appeal. — Briefs.—Failure to File. — Dismissal.—Where a cause was submitted, on appeal, on July 29, and appellant secured 30 days’ additional time on September 23, filing its briefs on October 28, the appellee calling attention thereto in his brief, the appeal will be dismissed, the year for tire taking of an appeal not having elapsed, when appellee’s brief was filed asking for such dismissal.
    From Henry Circuit Court; John M. Morris, Judge.
    Action by William Brewer against the Town of Shirley. From a judgment for the plaintiff, defendant appeals.
    
      Appeal dismissed.
    
    
      John Lockridge and William A. Brown, for appellant.
    
      Cook & Cook, Forkner & Forkner and Walker & Van Duyn, for appellee.
   Hadley, J.

This cause was submitted July 29, 1907. On September 23 appellant obtained thirty days additional time in which to file briefs. On October 28 appellant filed its briefs. This was ninety-one days from the date of submission. Under rule twenty-one the cause should have been dismissed by the clerk on October 28, since appellant’s briefs were not filed within the time limited. That the clerk did not enter such dismissal, cannot help appellant’s case. Smith v. Wells Mfg. Co. (1896), 144 Ind. 266; Cole v. Franks (1897), 147 Ind. 281.

Appellee, on December 24, filed a brief, and in said brief called attention to this condition. This was within the year from the date of the judgment, and furnished appellant with notice that his appeal would be dismissed. A new appeal could then have been taken. Under the rule, from which there is no deviation, the appeal should have been dismissed.

Appeal dismissed.  