SMITH v. SMITH

SMITH v. SMITH
1969 OK 150
463 P.2d 971
Case Number: 43379
Decided: 09/30/1969
Supreme Court of Oklahoma

CHESTER E. SMITH AS GUARDIAN OF THE ESTATE OF GEORGE W. SMITH, PLAINTIFF IN
ERROR,
v.
BOBBY GENE SMITH, DEFENDANT IN ERROR.

Appeal from District Court of Custer County; Charles M. Wilson, Judge.

Appeal dismissed.

Goodwin & Graft, by Charles L. Goodwin, Clinton, for plaintiff in error.

Royse & Meacham, Elk City, for defendant in error.

BERRY, Vice Chief Justice.

¶1 Plaintiff in error commenced an appeal by petition in error filed February 19, 1969. Defendant in error filed motion to dismiss on July 3, 1969, asserting failure by plaintiff in error to designate the record in the trial court, and failure to file briefs. By order entered July 15, 1969, this court directed plaintiff in error to respond to the motion to dismiss on or before July 25, 1969. No response has been made.

¶2 Briefing time is calculated from the date the record is certified by the trial court clerk as being completed. The record, not being designated by plaintiff in error, could not be completed, consequently briefing time has never commenced. There is, therefore, no failure to timely brief.

¶3 Rule 10 of Rules of Appellate Procedure in Civil Cases requires plaintiff in error to file a copy of the petition in error in the trial court, and to serve copy of the petition in error on the adverse party or parties, within ten days of the date the petition in error is filed in this court (Rule 5(c)), and concurrently to designate the record (Rule 10).

¶4 Unexcused failure by plaintiff in error to designate a record within the period provided by rules, supra, constitutes abandonment of the appeal. Appellate jurisdiction, once invoked, is subject to revocation by dismissal unless the appeal is prosecuted with diligence and dispatch. Abandoned appeals will be dismissed, particularly where a show cause order has been disregarded.

¶5 Appeal dismissed.

¶6 IRWIN, C.J., and DAVISON, WILLIAMS, BLACKBIRD, JACKSON, LAVENDER and McINERNEY, JJ., concur.