WALLACE v. SMITH

WALLACE v. SMITH
1921 OK 119
197 P. 152
81 Okla. 105
Case Number: 9627
Decided: 04/05/1921
Supreme Court of Oklahoma

WALLACE
v.
SMITH.

Syllabus

¶0 Appeal and Error--Failure to File Brief--Dismissal. Record examined, and motion of the defendant in error to dismiss the appeal herein for failure of the plaintiff in error to file brief in compliance with the order of this court sustained, and the cause dismissed.

John A. Remy, for plaintiff in error.
C. G. Hornor, for defendant in error.

JOHNSON, J.

¶1 On February 7, 1921, the defendant in error in the above entitled and numbered cause, through his counsel, filed his motion in this cause, alleging as follows:

"Comes now defendant in error and moves the court to dismiss this appeal for failure of the plaintiff in error to the briefs. The appeal was dismissed by the court for this reason about a year ago, but, on February 24, 1920, on application of plaintiff in error, the appeal was reinstated with leave to the briefs in twenty (20) days. No briefs have been filed, and the cause has now been pending in the Supreme Court in this condition for a number of years, all of which is a matter of record."

¶2 An examination of the record discloses that the allegations set forth in the motion are true; that on February 10, 1920, this cause was dismissed on motion of the defendant in error for the reason that the plaintiff in error had failed to comply with rule 7 (47 Okla. vi.) of this court, and thereafter, on February 16, 1920, plaintiff in error filed motion to set aside said order of dismissal and to reinstate his appeal. The fifth paragraph of his motion was as follows:

"5th. The plaintiffs in error further say, that John A. Remy, of Guthrie, Oklahoma, is their attorney in said cause and is the only attorney acquainted with the subject of said action sufficient to prepare a brief and argument therein, and that while the said John A. Remy has not been confined to his room, he has, until recently, been in poor health, and to the extent that it has greatly interfered with his practice and ability to look after said cause, but if this petition is sus- tained a brief will be prepared and filed within any reasonable time fixed by the court."

¶3 And thereafter, on February 24, 1921, the order of dismissal was set aside by this court and the appeal in said cause was reinstated, in which order of reinstatement the plaintiff in error was granted 20 days in which to file brief, and the record discloses that plaintiff in error has failed to file such brief and to furnish this court any reason why the same has not been filed in compliance with said order. Therefore the motion of defendant in error to dismiss the appeal herein is sustained, and it is hereby ordered that the same be and it is hereby dismissed.