Hilligoss v. Webb , 60 Okla. 89 ( 1916 )

This action was commenced in the district court of Pontotoc county for the recovery of a personal judgment against defendants. A general demurrer was sustained to the amended petition, and plaintiff elected to stand upon his petition and a judgment was rendered against plaintiff for costs. This proceeding in error was commenced by filing in this court a petition in error, with case-made attached, to have the judgment of the trial court reviewed. The record fails to show that the order of the trial court sustaining the general demurrer to the amended petition was entered of record in the trial court; also the record fails to show that the judgment of the trial court for costs against the plaintiff was entered of record in the trial court. Under numerous decisions of this court, the record presents no question for review for the above reason.

In Graham v. Graham, 57 Okla. 672, 157 P. 740. it was held:

"A purported order of the trial court sustaining a demurrer to a petition is without force where the case-made fails to show affirmatively that such order was entered of record pursuant to sections 5143, 5324, Rev. Laws 1910."

The petition in error with case-made attached was filed in this court on August 5, 1914, and this cause has been regularly assigned for submission and has been duly submitted, after notice to plaintiff in error. No brief has been filed as required by rule 7 of this court (38 Okla. x), and no excuse offered by plaintiff in error for not having complied with such rule. It has been many times decided by this court under such condition that the appeal will be presumed to have been abandoned, and should be dismissed. Conness v. Brown,44 Okla. 137, 143 P. 852.

For the reasons above suggested, the appeal is dismissed.

By the Court: It is so ordered.