
    LEAVITT et al. v. COMMERCIAL NAT. BANK.
    No. 964.
    Opinion Filed May 10, 1910.
    (109 Pac. 71.)
    APiPEAL AND ERROR — Dismissal—Failure to File Briefs. L. having filed his petition with case-made attached, and C, having filed its motion to dismiss the appeal on the ground of plaintiff’s failure to comply with the rule, which requires brief of the plaintiff in errpr to ibe prepared, served, and filed with the clerk of this court within 40 days after the filing of the petition in error, and. neither any response having been made thereto nor any briefs filed, the appeal will be dismissed.
    (Syllabus by the Court.)
    
      Error from Wagoner County Court; W. T. Drake, Judge.
    
    Action between L. H. Leavitt and others and the Commercial National Bank. From the judgment, Leavitt and others bring error.
    Dismissed.
    
      B. J. Beavers, for plaintiffs in error.
    
      Robert F. Blavr, for defendant in error.
   WILLIAMS, J.

On July 16, 1909, petition in error with ease-made attached was filed with the clerk of this court, and summons issued thereon. On the 25th day of February, 1910, the defendant in error filed a motion in this court, which shows service upon the attorney for the plaintiff in error, asking that the appeal be dismissed on account of the plaintiff in error’s failure to comply with rule 7 of this court (20 Okla. viii, 98 Pac. vi), which requires him to prepare 'and serve his brief upon defendant in error within 40 days, after filing his petition in this court, which he has failed to do.

Buie 5 of this court provides:

“When a motion is filed with the clerk, it must show service upon the opposite party as to the time it will be filed, who shall have 10 days thereafter in which to answer the same.”

Exactly 3 months have elapsed since this motion was filed in this court, and plaintiff in error has failed to make any response thereto, although he has been in default in the filing of his brief for over 6 months. If plaintiff in error is unable to undergo the expense of filing a printed brief, under rule 5, a motion containing a statement of the facts, by being served on the opposite side, could be retailed to the clerk of this court, and would be -considered by it after the expiration of the 10 days for reply thereto, without any necessity of any appearance of counsel here, and if it appeared that the alleged aggrieved party was unable to have printed a brief, and there was probable ground that he had a meritorious cause, this court would permit him to file typewritten briefs. Nothing of this kind has been done.

It follows that the appeal must be dismissed.

All the Justices concur.  