Cleveland Petroleum Refining Co. v. Bonner

RAINEY, J.

The petition in error and case-made, were filed in tkis court on tke 12th day of January, 1917, and tkis cause was regularly assigned for submission at tke February, 1918, term of this court. At that time no briefs bad been filed by any of tke plaintiffs in error, but there was on file defendant’s motion ■ to dismiss tke appeal as to all of tke plaintiffs in error except George J. Ames, in which motion it was recited that during tke pendency of tke appeal tire defendant in error and all tke plaintiffs in error except George J. Ames had entered into an agreement whereby tke defendant in error released all the plaintiffs in error except tke said George J. Ames from any personal liability on tke judgment rendered by the trial court, in consideration of part payment of the indebtedness represented by tke judgment, and other considerations. It was further recited that “nothing herein contained shall be so construed as to release George J. Ames from any liability whatever.” The agreement referred to was attacked to and made a part of tke motion.

On December 7, 1917, tke said George J. Ames filed a response to the motion to dismiss, in which he admitted tke agreement made between tke defendant and all the plaintiffs in error, except himself, and further alleged that the agreement was made without his knowledge or censent, and also without the knowledge or consent of his attorney, and that he, tke said George J. Ames, was desirous of urging his appeal in this court. In said response it was further contended that the release of part of the plaintiffs in error operated in law as a release of all.

Upon consideration of the matters contained in t!he motion to dismiss and the response filed thereto, tkis court, on tke 8th day of January, 1918, overruled the motion to dismiss, and on March 19, 1918, the said. George J. Ames, as one of the plaintiffs in error, was given 20 days within which to file a brief. This he has not done, and has offered no excuse whatever for his failure to do so in compliance with the rules of this court. We have frequently held that under such circumstances the appeal will be presumed to have been abandoned. Hilligoss v. Webb et al., 60 Okla. 89 , 159 Pac. 291 ; Wilcox v. Wootten, 60 Okla. 204 , 159 Pac. 1118 .

It therefore appears that since the questions involved in the appeal have become moot as between the defendants in error and all the plaintiffs in error, except the said George J. Ames, and that he has abandoned tke appeal, the same should be, and is hereby dismissed.

All the Justices concur.