McGIRT et al. v. FLEET et al.

McGIRT et al. v. FLEET et al.
1931 OK 636
26 P.2d 188
166 Okla. 49
Case Number: 21719
Decided: 10/24/1931
Supreme Court of Oklahoma

McGIRT et al.
v.
FLEET et al.

Syllabus

¶0 1. Appeal and Error--Failure of Plaintiff in Error to Comply With Rule as to Brief--Disposition of Cause.
Where plaintiff in error fails to file briefs in at least substantial compliance with Rule 10 of the rules of this court, effective March 1, 1933, and the defendant in error has filed brief reasonably sustaining the validity of the judgment appealed from, this court may, in its discretion, dismiss the appeal, or may affirm the judgment of the trial court where the record sustains the validity of the judgment and no prejudicial error appears.
2. Same--Judgment Affirmed.
Record examined, and held, that the record does not disclose any prejudicial error, and that the judgment of the trial court should be affirmed.

Appeal from District Court, Seminole County: Lucius Babcock, Assigned Judge,

Action by Dickey and Bepsey McGirt, by Jenetta McGirt, guardian, against D. F. Fleet, W. B. Osborn, John J. Fleet, and the Empire Oil & Refining Company. Judgment for defendants quieting their title, and plaintiffs appeal. Affirmed.

W. B. Phillips, for plaintiffs in error.
L. H. Harrell and A. M. Kerr, for defendants in error.

WELCH, J.

¶1 In the trial court the plaintiffs brought suit to recover real estate which they claim to own. The defendants answered by general denial, and asserted their own ownership in the land, and sought to have their title quieted as against the plaintiffs, alleging the purchase of the former interests of plaintiffs through proper partition proceedings theretofore had in the district court of the county in which the land was situated.

¶2 When the cause was called for trial the plaintiffs dismissed their action in open court filed a reply to the answer of the defendant, and trial was had, resulting in judgment for the defendants.

¶3 In this court the plaintiffs, as plaintiffs in error, have filed brief discussing at length the sufficiency of plaintiffs' petition in the trial court, and discussing the alleged error of the trial court in sustaining a demurrer to the plaintiffs' petition, but the record discloses that the trial court did not sustain, but, on the contrary, overruled, defendants' demurrer to plaintiffs' petition, and that thereafter in open court the plaintiffs dismissed their cause. The brief of plaintiffs in error does not mention or discuss any alleged error of the trial court in trying the cause and rendering judgment for the defendants, and in overruling plaintiffs' motion for new trial. The brief of defendants in error points out the complete failure of the plaintiffs in error to brief any alleged error referred to in the motion for new trial or in petition in error. The plaintiffs in error have failed to brief further, and when the cause was assigned for oral argument the plaintiffs failed to appear.

¶4 In keeping with the many decisions of this court, we are justified in assuming that the appeal has been abandoned on the part of the plaintiffs in error. The brief of the defendants in error appears to reasonably and fully sustain the validity of the judgment appealed from. In such case it is the well-settled rule in this court that this court may, in its discretion, dismiss the appeal or affirm the judgment of the trial court. Van Smith v. Coleman, 51 Okla. 371, 151 P. 1018; Oriental Cement Plaster Co. v. Roman Nose Gypsum Co, 54 Okla. 330, 153 P. 861; Stepp v. Turner, 83 Okla. 139, 200 P. 994.