DILLINGER v. POTTER

DILLINGER v. POTTER
1921 OK 274
200 P. 164
82 Okla. 219
Case Number: 10295
Decided: 07/12/1921
Supreme Court of Oklahoma

DILLINGER et al.
v.
POTTER, Adm'r.

¶0 Error from District Court, Tulsa County; Conn Linn, Judge. Action by Charles E. Potter, administrator of the estate of G. E. Potter, deceased, against T. A. Dillinger, J. W. Young, and Irene Jones, as executrix of the last will of W. F. Ewing, deceased. Judgment for plaintiff, and defendants bring error. Dismissed. Bush, Moss & Owen, for plaintiff in error Dillinger.

Walker & Steele, for plaintiff in error Jones.
G. C. Spillers, for defendant in error.

JOHNSON, J.

¶1 On June 17, 1921, the defendant in error filed his motion to dismiss the appeal of the plaintiffs in error for failure on the part of the plaintiffs in error to file brief as required by rule 7 of this court (47 Okla. vi), which provides 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 or called for argument. Proof of service must be filed with the clerk within ten (10) 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." An examination of the files of this cause discloses that the defendant in error's motion to dismiss was duly served upon the plaintiffs in error on the 16th day of June, 1921, and that no response has been filed thereto. The record further discloses that this cause was regularly set down for submission on June 14, 1921, and that the plaintiffs in error have failed to file brief as required by rule 7 of this court, supra, and that they offer no reason or excuse for such failure to file briefs. It therefore appears that the defendant in error's motion to dismiss the appeal should be sustained, and it is so ordered.