STATE ex rel. KING v. SUPERIOR COURT OF POTTAWATOMIE COUNTY et al.

STATE ex rel. KING v. SUPERIOR COURT OF POTTAWATOMIE COUNTY et al.
1910 OK 34
106 P. 646
25 Okla. 416
Case Number: 970
Decided: 01/11/1910
Supreme Court of Oklahoma

STATE ex rel. KING
v.
SUPERIOR COURT OF POTTAWATOMIE COUNTY et al.

Syllabus

¶0 PROHIBITION -- Writ of--Dismissal--Failure to File Brief. Where the relator, in a Petition for a writ of prohibition, fails to file in this court within the time fixed by the court under rule 23 (20 Okla. xii, 95 P. vii) his brief in support of his petition, the cause will be dismissed.

Application by the State, on the relation of Frederick King, for writ of prohibition to the Superior Court of Pottawatomie County and G. C. Abernathy, Judge: Cause dismissed.

H. Y. Thompson and T. G. Cutlip, for relator.
Blakeney & Maxey and Edw. Howell, for defendants.

HAYES, J.

¶1 This is an original action in this court on petition of relator for a writ of prohibition against G. C. Abernathy, as judge of the superior court of Pottawatomie county, commanding him to desist and refrain from further proceeding in an action in that court, wherein the First National Bank of Shawnee is plaintiff, and relator and others are defendants. To relator's petition, defendant demurred, and the cause was argued to the court at the same time of and jointly with the case of Burks v. Walker, ante, p. 353, 109 P. 544. An order of court was made fixing the time within which briefs should be filed by defendants in support of their demurrer and by relator in support of his petition. Defendants have filed their brief, but no brief whatever has been filed by relator. One additional question to those passed upon in Burks v. Walker is represented by this proceeding. In so far as the same questions are presented in this case as were presented in that case, if the same were determined upon the merits, their determination would be controlled by the decision of the court in that case. But rule 23 of this court (20 Okla. xii, 95 P. vii) provides that in applications in the Supreme Court for writs of prohibition, and such other remedial writs as may be provided by law, briefs shall be prepared and served in the manner and time as may be directed by the court in each case. Relator, having failed to file a brief herein in support of his petition within the time fixed by the court, and having failed to ask for any extension of such time, although same has long since expired, will be deemed to have waived his right to have the questions presented in his petition passed upon, and the cause will be dismissed.

¶2 All the Justices concur.