HASS v. McCAMPBELL

HASS v. McCAMPBELL
1910 OK 297
111 P. 543
27 Okla. 290
Case Number: 490
Decided: 10/18/1910
Supreme Court of Oklahoma

HASS et al.
v.
McCAMPBELL, City Clerk.

Syllabus

¶0 APPEAL AND ERROR--Failure to File Briefs--Dismissal. Where plaintiff in error fails to observe rule 7 (20 Okla. viii, 95 P. vi) by serving his brief on counsel for defendant in error within forty days after filing his petition in error or within the time thereafter extended by this court, and without sufficient excuse, the petition in error may be dismissed.

Error from District Court, Caddo County; Frank M. Bailey, Judge.

Action by J. P. Hass and others against J. A. McCampbell, City Clerk. Judgment for defendant, and plaintiffs bring error. Dismissed.

A. T. Boys, for plaintiffs in error.
Morris & Starkweather, for defendant in error.

TURNER, J.

¶1 This case was originally brought by J. P. Hass et al., plaintiffs in error, as plaintiffs, against. J. A. McCampbell, city clerk of the city of Anadarko, in the district court of Caddo county to restrain him from issuing warrants and certifying to the county clerk of that county an assessment made by the city council against certain property to pay for sidewalks constructed along its front. At the commencement of the action a temporary restraining order issued which on October 9, 1908, was dissolved, to reverse which, after superseding the order, plaintiffs on November 9, 1908, commenced proceedings in error in this court. After failing to observe rule 7 by serving their brief on counsel for defendant in error within 40 days after filing their petition in error, plaintiffs in error, on January 19, 1910, asked for and obtained leave of this court to file said brief in 60 days. On their failure so to do defendant in error, on April 19, 1910, filed motion to dismiss and served plaintiffs in error with a copy. For some reason this motion was not passed on, although unopposed. On March 16, 1910, plaintiffs in error withdrew the record in this cause from this court and failed to return the same until September 5, 1910, and on September 7, 1910, filed briefs herein.

¶2 This case was set for submission and was submitted on September 13, 1910, just six days after plaintiffs in error filed their briefs. Under the rules, defendant in error is entitled to 30 days after plaintiff in error files his briefs in which to file his briefs. It follows that, if plaintiffs in error's briefs are now to be considered, which were filed without permission of the court, the final determination of this case must still be further delayed.

¶3 Defendant in error insists that, pursuant to his motion for failure to file briefs, this cause should be dismissed. We think so too, and, as no excuse is attempted to be shown for this flagrant violation of rule 7 (20 Okla. viii, 95 P. vi), this petition in error is dismissed.

¶4 All the Justices concur.