Opinion
No. 22776
Opinion Filed November 29, 1932. Motion to Withdraw Opinion and Dismiss Appeal Denied November 7, 1933.
(Syllabus.)
Appeal and Error — Failure of Plaintiff in Error to File Brief — Affirmance with Judgment on Supersedeas Bond.
Where plaintiff in error fails to comply with the rules of this court requiring the filing of briefs, and appeal is subject to dismissal, reversal or affirmance; and where defendant in error has filed motion to affirm the judgment and for judgment on the supersedeas bond and against the sureties thereon and it appears that supersedeas bond has been given, and the same is incorporated in the case-made, this court will affirm the judgment and render judgment on the supersedeas bond.
Appeal from District Court, Osage County; Jesse J. Worten, Judge.
Action by Jackie Lambert, by his next friend, A.C. Seely, against R.H. Hill and Lester Hollingsworth. Judgment for plaintiff, and defendants appeal. Affirmed.
Wieck Armstrong, D.E. Hodges, and Hamilton, Gross Howard, for plaintiffs in error.
Hargis Yarbrough, for defendant in error.
This is an appeal from the judgment of the district court of Osage county rendered on jury verdict in an action wherein the defendant in error, as plaintiff, recovered a judgment against R.H. Hill and Lester Hollingsworth for the sum of $5,000, together with costs taxed at $227.85, on the 21st day of February, 1931, and from which judgment plaintiffs in error, on August 29, 1931, lodged appeal in this court.
Plaintiffs in error have failed to file brief as required by rule 7 of the rules of this court, and no showing has been made why they have failed to do so, although time for filing same has been repeatedly extended by this court from November 7, 1931. On July 20, 1932, the defendant in error filed motion to have the judgment of the lower court affirmed for failure of plaintiff in error to brief, and for judgment on supersedeas bond. On August 30, 1932, plaintiff in error was again given to October 1st to file brief, and no brief has yet been filed and no just reason shown for failure to file same. It appears from the record in this cause that a copy of supersedeas bond is incorporated in the case-made, and on which R.H. Hill and L.R. Hollingsworth appear as principals and P.S. Mason and George Sommer appear as sureties. The plaintiffs in error have not responded to this motion and have exhibited no evidence of their desire to further prosecute this appeal.
Where plaintiff in error fails to comply with the rules of this court requiring the filing of brief, the appeal is subject to dismissal or affirmance, and where proper motion has been made for judgment on supersedeas bond and it appears that supersedeas bond has been given, filed, and approved, and a copy thereof is set forth in the case-made, this court will affirm the judgment of the trial court and render judgment on such bond. Cameron v. McDaniels, 136 Okla. 289, 277 P. 917; Jacobs v. National Bank of Commerce, Tulsa, 143 Okla. 296, 288 P. 953; Jacobs v. Eclipse Paint Mfg. Co., 93 Okla. 187, 219 P. 705; Stepp v. Turner, 83 Okla. 139, 200 P. 994; Anderson v. Pollock, 153 Okla. 146, 5 P.2d 365.
It is therefore ordered, adjudged, and decreed by the court that the judgment of the trial court in this cause be and the same is hereby affirmed, and that defendant in error Jackie Lambert, by his next friend, A.C. Seely, have judgment on the supersedeas bond filed herein and against R.H. Hill and L.R. Hollingsworth, principals thereon, and P.S. Mason and George Sommer, sureties, for the sum of $5,000, together with costs taxed at $227.85.