MISSOURI O. & G. RY. CO. v. WORTMAN

MISSOURI O. & G. RY. CO. v. WORTMAN
1910 OK 349
112 P. 1017
27 Okla. 455
Case Number: 1828
Decided: 11/16/1910
Supreme Court of Oklahoma

MISSOURI, O. & G. RY. CO.
v.
WORTMAN.

Syllabus

¶0 APPEAL AND ERROR--Failure to File Briefs--Dismissal. Rule 7 of the rules of practice of this court (20 Okla. viii) requires the plaintiff in error in all civil cases, unless otherwise ordered by the court, to serve his brief on counsel for defendant in error within forty (40) days after filing his petition in error, and where this rule is not complied with, and a timely motion is duly made, served, and filed to dismiss by reason thereof, which motion is ignored and no excuse offered therefor, the petition in error will be dismissed.

Error from Hughes County Court; P. W. Gardner, Judge.

Action between J. A. Wortman and the Missouri, O. & G. Ry. Co. Appeal by the railway company dismissed.

Willmott & Wilhoit and E. R. Jones, for plaintiff in error.
Geo. C. Crump and J. Rose Bailey, for defendant in error.

DUNN, C. J.

¶1 This case presents error from the county court of Hughes county, and was filed in this court on July 1, 1910. A motion, showing service on counsel for plaintiff in error praying an order of dismissal for the failure of plaintiff in error to file briefs, was filed on September 16, 1910. Practically two months have elapsed since the service of this motion, and counsel for plaintiff have neither filed briefs nor made any showing in excuse for their failure.

¶2 Rule 7 of this court (20 Okla. viii) provides that:

"In each civil cause filed in this court, counsel for plaintiff in error shall, unless otherwise ordered by the court, serve his brief. on counsel for defendant in error within forty days after filing his petition in error, and shall at the same time file fifteen copies of said brief with the clerk of the Supreme Court * * * In case of failure to comply with the requirements of this rule, the court may continue or dismiss the cause, or reverse or affirm the judgment."

¶3 The same rule in effect was promulgated and put into force by the Supreme Court of the territory of Oklahoma, and the case of LeBreton v. Swartzel, 14 Okla. 521, 78 P. 323, is an instance of its enforcement. The same procedure has been adopted by this court in a number of cases. Horner et al. v. Goltry & Son, 23 Okla. 905, 101 P. 1111; Walker et al. v. Hannewincle, 24 Okla. 152, 103 P. 585.

¶4 Wherefore, the motion to dismiss is sustained.

¶5 All the Justices concur.