FITCH v. RICHARDSON. In re FITCH

FITCH v. RICHARDSON. In re FITCH. No. 607. (Circuit Court of Appeals, First Circuit February 23, 1906.) Appeal and Error — Failure to File Brief. Where an appellant fails to file a brief, as required by the rules of the Circuit Court of Appeals, the appellee is entitled to have the appeal dismissed or the judgment affirmed, unless the court of its own motion determines to consider the case on the merits, which it will not do unless the assignment of errors clearly presents the questions in issue without the necessity of going through the record, as to ascertain the issues would, in this case, require the court to go through the record, it was ordered that the appellant must file a brief under penalty of the appeal being dismissed, with costs. [Ed. Note. — For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 3104-3108.] D. D. Corcoran and George R. Swasey, for appellant. Henry A. Richardson, for appellee. Before COLT, PUTNAM, and LOWELL, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. This appeal was submitted by the appellee on brief, but the appellant has neither filed a brief nor applied to be heard orally. Under the rules and practice of the court, the appellee is entitled to have the appeal dismissed, or, perhaps, to have the judgment affirmed. Portland Company v. United States, 15 Wall. 1, 21 L. Ed. 113; Ryan v. Koch, 17 Wall. 19, 21 L. Ed. 611. Or, the court at its option might open the record and dispose of the case on its merits. In view of the fact that the appellee has filed a brief, the court might possibly do the latter of its own motion if the assignment of errors was of such a character that the court could see that it clearly and fairly presented the issues on the appeal. Such, however, is not the fact, and this to such an extent that it is impossible for the court to ascertain what the issues between the parties are without its going through the record. This, of course, the court is not inclined to do. The appellee has not specially asked that the judgment be affirmed. The following order will be entered: Ordered: Unless the appellant files a brief, framed in accordance with the rules, on or before March 17, 1906, the appeal will be dismissed, with costs for the appellee.