Renfrow v. Ittleson , 110 Okla. 109 ( 1925 )

This proceeding was once dismissed by this court for failure of plaintiff to file brief, but on his application that dismissal was vacated, and the case reinstated, and plaintiff was granted leave to file a typewritten brief. Defendants in error have now filed a motion in this court to dismiss this proceeding, for the reason that in the brief of plaintiff no effort has been made to comply with the requirements of rule 26 (87 Okla. xxiii) of this court. An examination of plaintiff's brief fully sustains this contention. It contains no abstract or abridgment of the transcript, and does not set forth the material parts of the pleadings and proceedings relied on, nor does it state any facts from the record which would give this court a clear understanding of the contentions made. There are no specifications of error set out in the brief and separately stated and numbered, nor any effort made in any other respect to assist this court in a consideration of this case by compliance with the provisions of said rule 26. Upon the authority of Diacon v. Bank of Commerce of Coweta,29 Okla. 737, 119 P. 204; Ebey, Rec., v. Krause, 35 Okla. 689130 P. 1100; Dickson v. Lowe, 38 Okla. 216, 123 P. 354; Worrell v. Fellows, 39 Okla. 769, 136 P. 750, and numerous other decisions of this court, announcing the same rule, this proceeding should be dismissed for failure to comply with rule 26 of this court.

It may be said, in connection with this dismissal, that it effectuates a proper and rightful determination of this case on the merits by leaving in full force and effect the judgment of the trial court. The only question involved in this proceeding, which goes to the merits of the case and to the substantial rights of the parties, is that of priority between the lien of the plaintiff under his chattel mortgage and the lien of defendants under their assignment of the conditional sales contract. Since the mortgage of plaintiff expressly shows upon its face that it was given subject to the prior lien of the Southwest Nash Motor Company and since the record discloses that the lien of the Southwest Nash Motor Company, was filed for record about three hours and a half prior to the filing of plaintiff's mortgage, the judgment of the trial court determining that the lien of defendants under the conditional sales contract was prior and superior to the lien of plaintiff under his chattel mortgage was unquestionably correct under the law and did substantial justice between the parties. Plaintiff has his personal judgment against the defendant R. L. Williams for the amount of his indebtedness and his chattel mortgage has been established and foreclosed as a second lien against the property. This is all that plaintiff could legally be entitled to under the facts shown in this record.

For failure of plaintiff in the preparation of his brief to observe the requirements of rule 26 of this court, this proceeding is dismissed.

By the Court: It is so ordered.