SECREST v. FIRST STATE BANK OF COWETA

SECREST v. FIRST STATE BANK OF COWETA
1921 OK 272
200 P. 150
82 Okla. 220
Case Number: 10234
Decided: 07/12/1921
Supreme Court of Oklahoma

SECREST
v.
FIRST STATE BANK OF COWETA.

Syllabus

¶0 1. Appeal and Error--Failure to File Brief--Dismissal. Where the record discloses that the plaintiff in error has failed to serve his brief on counsel for defendant in error and to file same in this court, and has offered no excuse for such failure, as required by rule 7 of this court (47 Okla. vi), the court may dismiss such appeal for failure to prosecute the same.
2. Same. Record examined, and held, that the appeal should be dismissed on account of failure of plaintiff in error to prosecute the same in accordance with the rules of this court, and the appeal is dismissed for failure to prosecute the same.

Watts & Watts, for plaintiff in error.
Blakeney & Maxey, for defendant in error.

JOHNSON, J.

¶1 The record discloses that this proceeding in error was commenced by the plaintiff in error filing in this court a petition in error with copy of case-made attached on September 24, 1918, and thereafter the cause was ordered by the court set down for submission, and thereafter, on July 24, 1920, defendant in error filed a motion to dismiss the appeal, which motion was sustained and the appeal dismissed in an opinion by Kane, Justice. (See App. Ct. Rep., vol. 13. p. 116, 1920.) That thereafter, on September 14, 1920, plaintiff in error was granted ten days in which to file petition to reinstate, and on September 20, 1920, a stipulation of the parties was filed for the vacating of the order of dismissal and for the reinstatement of the case, and on November 16, 1920, the cause was reinstated as per stipulation, and plaintiff in error granted leave to withdraw case-made for correction to be made under the direction of the trial court within 30 days upon five days' notice to the defendant in error, and thereafter, on December 13, 1920, the case-made was refiled in this court, showing that the same had been amended under the direction of the trial court on the 3rd day of December, 1920, and thereafter, on April 18, 1921, notice was given by the clerk of the Supreme Court that the case was set for submission on June 14, 1921, and said case was so submitted on said date. The record further discloses that the plaintiff in error has failed to file brief herein or show any reason why such brief has not been filed as required by rule 7 of this court, which is as follows:

"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 at least forty (40) days before the case is set for submission. Counsel for plaintiff in error shall file with the clerk of this court twenty (20) copies of such brief within the time above designated, and defendant in error shall, within thirty (30) days after the service of the brief of plaintiff in error upon him, file with the clerk of this court twenty (20) copies of his answer brief, and serve same upon plaintiff in error; and all reply briefs, except as otherwise ordered by the court, must be filed by the date the case is submitted for argument. Proof of service must be filed with the clerk within ten days after service.

¶2 "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, in its discretion." For the reasons above set forth, it is ordered that the appeal herein be, and the same is hereby dismissed for the want of prosecution.