
    GUMMERE v. COLES.
    No. 10950
    Opinion Filed Jan. 30, 1923.
    (Syllabus.)
    Appeal and Error — Failure to File Brief— Dismissal.
    Where plaintiff in error appeals from a final order and judgment, and said cause is regularly set for submission, and on the date said cause is set for submission, plaintiff in error, not having complied with rule 7 of this court by serving and filing Ms brief 40 days theretofore, obtains leave of court to file brief within 30 days from date of submission, but fails-to file brief within the 30 days allowed, and fails to ask for a further- extension of time, the appeal will be dismissed for want of prosecution.
    Erector from District Court, Major County; James B. Cullison, Judge.
    Action by R. Coles against William H. Gummere. Judgment for plaintiff, and defendant brings error.
    Dismissed.
    T. E. Willis, for plaintiff in error.
    H. A. Noah, for defendant in error.
   .BRANSON, J.

On the 17th day of April, 1918, defendant in error, R. Coles, plaintiff below, obtained a judgment in the district court of Major county, against William' H. Gummere, defendant below, plaintiff in or-ror herein, in replevin, finding that the said defendant in error was entitled to the immediate possession of certain live stock in said judgment described, or if possession could not be given, for the value of said live stock, as set out in said judgment.

A motion for new trial wias filed, which was overruled by the trial court on tile 8th day of April, 1919. Prom this judgment and order overruling the motion for new trial, the defendant, William H. Gummere, plaintiff 'in error jhetrein, appealed to this court by fifing within the time provided by law, -a petition in error in this court, and attaching thereto a case-made, duly and properly certified by James B. Cullison, judge of the district court of Major county.

'Said cause being set for submission for October 17, 1922, and rule 7 of this court being:

“In each civil cause filed in this court, counsel for plaintiff in error shall, unless otherwise ordered by the court, serve his brief on counsel for defendant in error at least forty (40) days before the case is set for submission. Counsel for plaintiff in error shall file with the clerk of this court twenty (20) copies of such brief within the time above designated and defendant in error shall, within thirty (30) days after the service of the brief of plaintiff in error upon Mm, file with the clerk of this court twenty (20) copies of his answer brief and serve same upon plaintiff in error; and all reply briefs, except as otherwise ordered by the court, must be filed by the date the case is submitted or called for argument. Proof of service must be filed with the clerk within ten days after service. In case of failure to comply with the requirements of this rule, the court may continue to dismiss the cause, or reverse or affirm the judgment, in its discretion”

—required the plaintiff in error to serve his brief on defendant in error" 40 days before the case is set for submission. Plaintiff in error, having failed to comply -with this rule, did on October 17, 1922, the day said cause was submitted, ask leave of court to .file brief within 30 days from that date, vvMeh was granted by tills court. No brief having been filed, either as provided by the said rule, or within the 30 days allowed, and no further extension of time being asked by the plaintiff in error, this appeal is dismissed for want of prosecution. (Hornaday et al. v. Bank of Commerce of Sapulpa et al., 79 Okla. 261, 192 Pac. 1093; Wright et al. v. Waggoner et al., 80 Okla. 56, 193 Pac. 997.)

JOHNSON, Y. C.' J., and KANE, MC-NEILL, KENNAMER. and COCHRAN, JJ., ■concur.  