This is an original proceeding by certiorari whereby relator seeks to quash the record in a certain case decided by the Kansas City Court of Appeals, on the ground that the decision therein is in conflict with a controlling descision of this court.
Respondents have filed a motion to dismiss the case, assigning as a ground therefor the failure of relator to comply with the provisions of Rule 33 of this court concerning the printing and filing of abstracts of the record in cases arising upon the issuance of original writs by this court.
Rule 33 of this court provides: "On final hearing printed abstracts and briefs shall be filed in all respects as is required in appeals and writs of error in ordinary cases."
The rule applicable to appeals and writs of error in ordinary cases requires the party litigant, upon whom the duty falls to prepare the abstract, to have the same printed and served upon the opposing party at least thirty days before the cause is set for hearing. *Page 598
The case at bar was duly placed on the October docket of 1919, and was set for argument on October 21, 1919. On October 11, 1919, respondents served relator with a copy of their motion to dismiss. On October 16, 1919, and after respondents had served relator with a copy of the motion to dismiss, the relator for the first time served respondents with a printed abstract of the record in this case, and on October 18, 1919, relator deposited ten copies of said printed abstract with the clerk of this court.
The motion to dismiss was ordered taken with the case and must now be determined before further proceeding with the case.
Upon the oral argument and also in his brief counsel for relator suggested that, since Rule 33 failed to specifically state the abstract should be served upon the opposite party, but merely stated that printed abstracts should be "filed" as in ordinary cases, it should not be held that relator had failed to comply with the rule.
We think it is very clear from a reading of the rule that relator's interpretation thereof is not justified by the full wording and context of the same. If relator's present interpretation of the rule be correct, relator would not be required to serve respondents with a copy of the printed abstract at any time. This was certainly not the result anticipated when the rule was formulated. The rule requires that printed abstracts shall be filed "in all respects" as is required in ordinary cases.
The rule in ordinary cases requires (absent stipulation between the parties) the filing of ten copies of printed abstract which has theretofore been served upon the opposing party at least thirty days prior to the day on which the cause is set for hearing.
Relator failed to do that in the present case and thereby failed to comply with Rule 33 of this court. Under such circumstances applying by analogy the rule *Page 599 announced by Court in Banc in State ex rel. Pedigo v. Robertson, 181 S.W. 987, it is our duty to dismiss the case.
It is so ordered. All concur.