Cooper v. Chapman

WILLIAMS, J. The petition in error with case-made attached was filed in this court on October 26, 1909. On February 8, 1910, the time within which the plaintiff in' error was permitted to file briefs was extended for 60 days. This time has expired, and no briefs have been filed. On June 22, 1910, motion to dismiss this appeal was filed on the grounds (1) of failure to file briefs; and (2) for the reason that the case-made does not affirmatively show service of notice upon the defendant in error of the time and place of the presenting, signing, and settling of the same. 1. In Leavitt et al. v. Commercial Nat. Bank, infra, 109 Pac. 71, the syllabus is as follows: “L. Having filed his petition with case-made attached, and C. having filed its motion to dismiss the appeal on the ground of plaintiff’s failure to comply with the rule, which requires brief of the plaintiff in error to be prepared, served, and filed with the clerk of this court within 40 days after the filing of the petition in *601 e’rror, and neither any response haring been made thereto nor any briefs filed, the appeal will be dismissed.” No response has been made by plaintiff in error to excuse failure to file briefs. 2. The ease-made does not show that any notice was had upon the defendant in error or his attorney of record of the time and place of the presenting, settling, and signing of the case-made. In First National Bank of Collinsville v. Daniels, infra, 108 Pac. 748, the syllabus is as follows: “A proceeding in error brought to this court on a case-made, where it does not appear from the record or otherwise that the defendant was present either personally or by'counsel at the settlement, or that notice of the time thereof was served or waived, or what amendments suggested, if any, were allowed or disallowed, will be dismissed on motion of defendant in error.” See, also, Grayson v. Perryman, 25 Okla. 339, 106 Pac. 954. It follows that the motion to dismiss the appeal must be sustained. All the Justices concur.