Opinion
No. 21826
Opinion Filed November 24, 1931.
(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 brief and said appeal is subject to dismissal, reversal or affirmance, and where motion has been filed in this court for judgment on supersedeas bond, for all other and further relief that may be proper and just in the premises, and it appears that a supersedeas bond has been given, filed, and approved and that the same is set out in the case-made, this court will affirm the judgment and render judgment against the sureties on said bond.
Appeal from County Court, Ottawa County; Cuddie E. Davidson, Judge.
Action by Alta Pollock against Joe Anderson for damages. From the judgment in favor of the plaintiff for $1,000 the defendant appeals. Affirmed.
O.F. Mason, for plaintiff in error.
Wm. M. Thomas, for defendant in error.
This is an appeal from the judgment of the county court of Ottawa county an action wherein the defendant in error, Alta Pollock, as plaintiff, recovered judgment against Joe Anderson, in the sum of $1,000 with interest at 6 per cent. per annum, from the 16th day of October, 1929, and for costs. The plaintiff in error has failed to file brief as required by rule 7 of the rules of this court, and has otherwise failed to comply with the order of this court granting permission to correct case-made, and no showing has been made why he has failed to do so, although the time therefor has been extended and the time as extended has elapsed more than five months. The defendant in error on the 17th day of July, 1931, filed in this cause her motion for judgment on supersedeas bond and for all other and further relief to which she might be entitled in the premises. It appears from the record in this cause that a copy of the supersedeas bond is incorporated therein, and on which bond Roy Downs, Grover Renick, Frank W. Potts, and R.E. Wright appear as sureties. The plaintiff in error has not responded to this motion and has given no evidence of his desire to further prosecute this appeal.
Where plaintiff in error fails to comply with the rules; of this court requiring filing of the briefs, the appeal is subject to dismissal, or affirmance of the judgment, in the discretion of this court, and where a proper motion has been made for judgment against the sureties on the supersedeas bond, and it appears that the 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. Eclipse Paint Manufacturing Co., 93 Okla. 187, 219 P. 705; stapp v. Turner, 83 Okla. 139, 200 P. 994; Jacobs v. National Bank of Commerce, 143 Okla. 296, 288 P. 953.
It is therefore ordered and decreed by this court that the judgment of the trial court in this cause be affirmed and the defendant in error, Alta Pllock, have judgment against Roy Down, Grover Renick, Frank W. Potts, R.E. Wright, sureties on the supersedeas bond, in the sum of 1,000, with interest at the rate of 6 per cent. per annum from the 16th day of October, 1929, until paid and for costs.