Smith v. Smith

1969 OK 150, 463 P.2d 971, 1969 Okla. LEXIS 464

• Court: Supreme Court of Oklahoma
• Decided: September 30, 1969
• Docket: 43379
• Status: Published

Opinion

BERRY, Vice Chief Justice.

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 IS, 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.

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.

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).

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.

Appeal dismissed.

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