Opinion
No. 5702
Decided December 2, 1957.
Appeal — Failure to file brief within rule — Motion to dismiss — Interpreted as motion to affirm, and sustained, when.
A motion to dismiss an appeal for failure of appellant to file a brief within rule may be interpreted as a motion to affirm the judgment and sustained as such, where appellant, after being in default and having obtained an extension of time for the filing thereof, has not filed his brief after nearly four months therefrom.
ON MOTION to dismiss: Court of Appeals for Franklin County.
Messrs. Vorys, Sater, Seymour Pease, for appellant.
Messrs. Barkan, Brown Crites, for appellees.
This matter comes on for consideration upon the motion of Ronald Eugene Owen and John Owen, defendants, appellees herein, to dismiss the appeal for failure of Napoleon Harshaw, Jr., plaintiff, appellant herein, to file his brief within the time provided by Rule VII of the Rules of the Courts of Appeals.
This case was begun in the Columbus Municipal Court which dismissed the petition and directed a verdict for the Owens, defendants below, at the end of the opening statement on behalf of Harshaw, Jr., plaintiff below.
Harshaw filed notice of appeal on questions of law on April 29, 1957, and his brief and assignment of errors were due to be filed on June 22, 1957, at the time he filed his bill of exceptions. (See Rule VII, supra.)
On July 9, 1957, while in default for his brief, counsel for Harshaw, by an agreed entry, obtained from this court an extension to July 30, 1957, of the time in which to file this brief. Nearly four months more have passed and it still has not been filed nor has there been any explanation.
For the reasons above set forth, the motion to dismiss will be interpreted as a motion to affirm the judgment of the court below and, as such, will be, and hereby is, sustained.
Judgment accordingly.
PETREE, P. J., BRYANT and MILLER, JJ., concur.