Opinion
No. 22227
Opinion Filed June 14, 1932.
(Syllabus.)
Appeal and Error — Dismissal of Appeal for Failure to File Brief.
Where plaintiff in error files no brief within the time required by rule 7, or within any extension of time granted by this court, and assigns no reason for his failure to do so, the appeal will be considered as abandoned and the appeal dismissed.
Appeal from District Court, Ellis County; T.P. Clay, Judge.
Action by E.C. Gray against the Home Royalty Association and others. Motion by defendants to set aside sheriff's sale had under foreclosure proceedings. From the order and judgment of the court denying the motion to set aside sale and order confirming, the defendants appeal. Dismissed.
Monnett Savage and C.B. Leedy, for plaintiffs in error.
Gray Palmer, for defendant in error.
This is an appeal from the order and judgment of the district court of Ellis county, denying the motion of the defendants, the Home Royalty Association, a corporation, successors to the Home Royalty Association, a common law trust, W.H. Helmerich and William Broadhurst, to set aside sheriff's sale of real estate made under judgment of foreclosure, and further order confirming said sale. The order overruling motion for new trial was entered October 6, 1930, and the petition in error and case-made filed in this court on April 6, 1931, the last day of the six-month period in which to file the appeal. Plaintiff in error has been granted repeated extensions of time in which to file brief, the last order entered March 23, 1932, granting plaintiff in error 30 days from said date, but plaintiff in error has filed no brief nor any other instrument in this cause. On April 27th, defendant in error filed motion to dismiss the appeal for failure of plaintiff in error to file brief.
The second paragraph of rule 7 of this court provides:
"In case of failure to comply with the requirements of this rule, the court may continue or dismiss the cause or reverse or affirm the judgment at its discretion."
This court has repeatedly held that where plaintiff in error files no brief, the appeal will be considered as abandoned and under rule 7 the appeal dismissed. Taylor v. Ballew, 51 Okla. 461, 151 P. 1071; Twitchell v. Chamness, 143 Okla. 146, 252 P. 827; Anderson v. Pollock, Okla. 146, 5 P.2d 365.
More than one year having elapsed since the filing of the appeal in this court and the plaintiffs in error having failed to file brief, or assign any reason for their failure to do so, the motion of the defendant in error to dismiss the appeal is sustained, and the appeal dismissed.
Note. — See under (1), 2 R. C. L. 176; R. C. L. Perm. Supp. p. 360.