Worrell v. Fellows

• Decision Date: 18 November 1913
• Docket Number: Case Number: 3142
• Parties: WORRELL et al. v. FELLOWS.
• Court: Oklahoma Supreme Court

1913 OK 680

136 P. 750

39 Okla. 769

WORRELL et al. v. FELLOWS.

Case Number: 3142

Supreme Court of Oklahoma

Decided: November 18, 1913

Syllabus

¶0 1. APPEAL AND ERROR--Brief--Requisites. Rule 25 of the Supreme Court (38 Okla. x, 95 P. viii), which provides that in all cases, except felonies, the brief of the plaintiff in error, in substance, shall set forth the material parts of the pleadings, proceedings, and facts upon which reliance is had for reversal, so that no examination of the record itself need be made in said court, and shall also contain specifications of the errors complained of, separately set forth and numbered, is mandatory; and where it is not observed, and counsel for the defendant in error in his brief insists that such rule has not been complied with, and the plaintiff in error, making no request for permission to amend its brief, permits said cause to be submitted with the briefs in that condition, the alleged errors will not be reviewed.

2. SAME--Case-Made--Requisites. A case-made itself must contain the positive avermerit by way of recital that it contains all the evidence submitted or introduced in the trial of the case, and in the absence of such recital this court will not review any question depending upon the facts for its determination. (a) Neither the certificate of counsel that the case-made contains all the evidence, nor the certificate of the stenographer that his transcript contains all the evidence, being authorized by law, can be substituted for the certificate hereinabove mentioned.

3. SAME--Record--Instructions--Evidence. Record examined, and held sufficient to sustain the judgment entered in the court below.

Rush & Smith and W. K. Snyder, for plaintiffs in error.

H. J. Sturgis, for defendant in error.

ROBERTSON, C.

¶1 The brief of plaintiffs in error does not comply with the requirements of rule 25 of this court (38 Okla. x, 95 P. viii), in that it contains no abstract or abridgment of the transcript, setting forth the material part of the pleadings, proceedings, facts, and documents upon which plaintiffs in error rely, together with such other statements from the record as are necessary to a full understanding of the questions presented to this court for decision, so that examination of the record itself need not be made by this court. Neither does the brief contain any assignment or specification of error complained of, separately set forth and numbered. It is impossible to gather from the briefs of plaintiffs in error just what questions are intended to be presented for review. On page 16 of the original brief, it is said:

"The sole contention of the plaintiffs in error upon which they rely for reversal of the judgment of the trial court is that, conceding that the finding of the jury was correct, and that the plaintiffs in error failed to inform the defendant in error of the foreclosure of said mortgage and the sale of said property, still the plaintiff in error, Ollie Worrell, then had a right any time prior to the trial to acquire title to said land and tender it to the said Fellows under the terms of their contract."

¶2 Yet, notwithstanding the absence of an assignment or specification of errors, and the foregoing statement that there is but one question in the case, it appears that counsel for plaintiffs in error have argued several different propositions upon which they rely for a reversal, and also complain of the refusal of the court to give certain instructions. The defendant in error is here objecting to a consideration of the questions in this case for various reasons, one of which is that plaintiffs in error have failed to comply with the requirements of rule 25 of this court, above referred to. This objection is good and must be sustained. It has been frequently held by this court that the failure of litigants to substantially comply with rule 25, supra, relating to specifications of error, arguments, and authorities, will result in the appeal being dismissed. The original brief of plaintiffs in error in this case in no respect complies with the provisions of said rule. Lawless v. Pitchford, 33 Okla. 633, 126 P. 782; Vanselous v. McClellan, 35 Okla. 505, 131 P. 172; Indian Land & Trust Co. v. Widner, 35 Okla. 652, 130 P. 551. The brief of defendant in error calling attention to this defect of the brief of plaintiffs in error was filed on August 4, 1913, and yet the plaintiffs in error have made no request for permission to amend their brief, but have permitted the cause to be submitted with the briefs in such condition, and, on the contrary, have filed a reply brief, attempting to justify the shortcomings of the original brief. This is insufficient. In Arkansas Valley Nat. Bank v. Clark, 31 Okla. 413. 122 P. 135, it was said by the court:

"Rule 25 of the Supreme Court (20 Okla. xiii, 95 P. viii), which provides that in all cases, except felonies, the brief of the plaintiff in error, in substance, shall set forth the material parts of the pleadings, proceedings, and facts upon which reliance is had for reversal, so that no examination of the record itself need be made in said court, and shall also contain specifications of the errors complained of, separately set forth and numbered, is mandatory; and, where it is not observed, and counsel for the defendant in error in his brief insists that such rule has not been complied with, and the plaintiff in error, making no request for permission to amend its brief, permits said cause to be submitted with the briefs in that condition, the alleged errors will not be reviewed."

¶3 The appeal should, for the reasons above given, be dismissed, but there are other questions raised that will render such action unnecessary. It appears that the questions plaintiffs in error desire reviewed require an examination of the evidence in this...