Opinion
No. 10735
Opinion Filed June 6, 1922.
(Syllabus.)
Appeal and Error — Failure to File Brief — Dismissal.
When a case is pending in this court and set for hearing on the regular printed docket, and the plaintiff in error fails to file, brief, but obtains additional time in which to file brief, and thereafter fails to file brief within such extension of time, and the defendant in error thereafter files a motion to dismiss the appeal because the plaintiff in error has failed to file brief, and the plaintiff in error fails to respond to such motion or in any way excuse its failure to file brief, this court may, under rule No. 7 of this court, exercise its, discretion and dismiss the appeal for failure to file brief.
Error from District Court, Pontotoc County; J.W. Bolen, Judge.
Action by Eureka Fire Hose Manufacturing Company to recover on a contract against the Incorporated Town of Stonewall. Judgment for defendant. Plaintiff appeals. Appeal dismissed.
B.H. Epperson, for plaintiff in error.
Geo. W. Burris and J.W. Dean, for defendant in error.
This action was commenced in the district court of Pontotoc county, Okla., by the Eureka Fire Hose Manufacturing Company, as plaintiff, against the Incorporated Town of Stonewall, as defendant, to recover on a contract for goods, wares, and merchandise sold by the plaintiff to the defendant. Issues were joined and the cause submitted to the court on an agreed statement of facts, which resulted in a judgment in favor of the defendant and against the plaintiff. The plaintiff saved all necessary exceptions; gave notice of appeal and appears here as plaintiff in error, but for convenience the parties will be referred to as they appeared in the lower court.
This case was set for submission on the regular printed docket of this court for Tuesday, April 18, 1922. On March 7, 1922, on application of the plaintiff, it was given 20 days in which to file a brief and the defendant given 20 days from the service of plaintiff's brief to answer. On April 18, 1922, when the case was reached on the call of the docket, it was submitted on briefs to be filed. The plaintiff failed to file its brief, and on May 12, 1922, the defendant filed a motion to dismiss the appeal because the plaintiff bad failed to comply with rule No. 7 of this court (47 Okla. vi). This rule is set out in full in Re Seizure One Chevrolet, Baby Grand Anto v. State of Oklahoma, 82 Okla. 202, 200 P. 144.
The motion to dismisss was duly served on the plaintiff on May 11, 1922. The plaintiff has failed to respond to said motion or exercise its failure to file brief herein, or show any cause why said motion to dismiss, should not be sustained and the appeal dismissed; therefore, we think said motion to dismiss should be sustained.
Under the last paragraph of said rule No. 7, the appeal is hereby dismissed.
KANE, JOHNSON, ELTING, and NICHOLSON, JJ., concur.