Opinion
No. 20994
Opinion Filed June 3, 1930.
(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 said appeal is subject to dismissal for want of prosecution, and where motion has been filed in this court to affirm the judgment and enter judgment on the supersedeas bond against the sureties thereon, and a copy of the supersedeas bond upon which judgment is sought is incorporated in the record in this court, this court will affirm the judgment and render judgment on the supersedeas bond.
Error from Common Pleas Court, Tulsa County; S.M. Rutherford, Judge.
Action by the National Bank of Commerce of Tulsa against Louie Jacobs and another. Judgment for plaintiff, and defendant appeals. Affirmed.
Robinson Jones, for plaintiffs in error.
Elton B. Hunt, for defendant in error.
This is an appeal from the judgment of the common pleas court of Tulsa county in an action wherein the defendant in error, National Bank of Commerce, as plaintiff, recovered judgment against Louie Jacobs and Fannie Jacobs for the sum of $1,550.83, with interest thereon at the rate of 10 per cent. per annum from June 6, 1929, and for costs of the action, including attorney fees of $155.08. The 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 file briefs herein, although the time therefor has been extended and the time as extended expired April 7, 1930. The defendant in error on the 17th day of May, 1930, filed in this cause its motion to, affirm the judgment of the trial court and render judgment against the sureties on the supersedeas bond executed by the plaintiffs in error. It appears from the record in this cause a copy of the supersedeas bond is incorporated therein, and on which bond J.C. Payne and Lois Blankenship appear as sureties. The plaintiffs in error have not responded to this motion and have exhibited no evidence of their desire to further prose, cute this appeal.
Where plaintiff in error fails to comply with the rules of this court requiring the filing of briefs, the appeal is subject to dismissal, and where a proper motion has been made for judgment on the supersedeas bond against the sureties thereon 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. McDaniel, 136 Okla. 289, 277 P. 917; Jacobs v. Eclipse Paint Mfg. Co., 93 Okla. 187, 219 P. 705; Stepp v. Turner, 83 Okla. 139, 200 P. 994.
It is therefore ordered and decreed by this court that the judgment of the trial court in this cause be affirmed and the defendant, National Bank of Commerce of Tulsa, Okla., have judgment against said H.C. Payne and Lois Blankenship in the sum of $1,550.83, with interest at the rate of 10 per cent. per annum from the 6th day of June, 1929, until paid, and for costs.
Note. — See under (1) 2 R. C. L. p. 176; R. C. L. Perm. Supp. p. 360. See "Appeal and Error," 3 C. J. § 1607, p. 1144, n. 2.