Opinion
No. 8864
Opinion Filed April 23, 1918.
(Syllabus.)
Appeal and Error — Want of Prosecution — Dismissal.
Where pending an appeal in this court the questions involved in the appeal become moot as between the defendant in error and all the plaintiffs in error, except one, and where the remaining plaintiff in error fails to file a brief, as required by rule 7 of this court (47 Okla. vi), and offers no excuse for such failure, the appeal will be deemed to have been abandoned, and will be dismissed for want of prosecution.
Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.
Action between the Cleveland Petroleum Refining Company and George J. Ames and others and W.M. Bonner. Judgment for the latter, and the former bring error. Dismissed.
E.R. Hastings, for plaintiffs in error.
Wilson, Tomerlin Buckholts, for defendant in error.
The petition in error and case-made were filed in this court on the 12th day of January, 1917, and this cause was regularly assigned for submission at the February, 1918, term of this court. At that time no briefs had been filed by any of the plaintiffs in error, but there was on file defendant's motion to dismiss the appeal as to all of the plaintiffs in error except George J. Ames, in which motion it was recited that during the pendency of the appeal the defendant in error and all the plaintiffs in error except George J. Ames had entered into an agreement whereby the defendant in error released all the plaintiffs in error except the said George J. Ames from any personal liability on the judgment rendered by the trial court, in consideration of part payment of the indebtedness represented by the judgment, and other considerations. It was further recited that "nothing herein contained shall be so construed as to release George J. Ames from any liability whatever." The agreement referred to was attached to and made a part of the motion.
On December 7, 1917, the said George J. Ames filed a response to the motion to dismiss, in which he admitted the agreement made between the defendant and all the plaintiffs in error, except himself, and further alleged that the agreement was made without his knowledge or consent, and also without the knowledge or consent of his attorney, and that he, the said George J. Ames, was desirous of urging his appeal in this court. In said response it was further contended that the release of part of the plaintiffs in error operated in law as a release of all.
Upon consideration of the matters contained in the motion to dismiss and the response filed thereto, this court, on the 8th day of January, 1918, overruled the motion to dismiss, and on March 19, 1918, the said George J. Ames, as one of the plaintiffs in error, was given 20 days within which to file a brief. This he has not done, and has offered no excuse whatever for his failure to do so in compliance with the rules of this court. We have frequently held that under circumstances the appeal will be presumed to have been abandoned. Hilligoss v. Webb et al., 60 Okla. 89, 159 P. 291; Wilcox v. Wootten, 60 Okla. 204, 159 P. 1118.
It therefore appears that since the questions involved in the appeal have become moot as between the defendants in error and all the plaintiffs in error, except the said George J. Ames, and that he has abandoned the appeal, the same should be, and is hereby dismissed.
All the Justices concur.