Williams v. Patterson

CONNER, C. J.

The record discloses that the judgment in this case in appellee’s favor against the appellants was rendered on May 31, 1924. Appellants E. L. Williams, Miner-via Williams, and Minervia Williams, guardian of Clifford, Milford, and Beulah McCarty, executed and had duly filed a supersedeas bond on appeal on June 3, 1924, and the transcript and statement of facts were filed in this court on August 29, 1924. Appellants have filed no briefs either in the court below or in this court, and the written agreement signed by counsel for all parties relating to that subject is to the effect that the filing of briefs in the district court is waived, but that appellants should file briefs in this court not later than 30 days before the submission of the cause. Appellants have presented briefs which they now request may be filed. The clerk of this court in the due order of business, on May 5, 1925, set this case down for submission on May 30,1925, and gave due notice thereof to appellants’ attorneys. The motion for leave to file briefs was not filed in this court until May 21,1925. Therein appellants alleged that a copy of the briefs which they tendered for filing w'as delivered to counsel for appellee on May 18, 1925, 12 days before the day of submission. Appellee has filed in answer to the motion an affidavit to the effect that business engagements are such that they would be unable to answer appellants’ briefs, and move that the case be dismissed, or, 'at all events, that the case be postponed for 80 days in order to give them an opportunity to reply to appellants’ briefs, which contains some 10 assignments of error and 12 propositions, which, together with argument, etc., covers some 30 pages of typewritten matter. Appellants’ excuse for failure to file briefs, as provided for in the rules, and as specified in the agreement, is that, because of other engagements and the unexpected transfer of cases from the docket of this court they delayed an earlier preparation of their brief.

We think it is apparent from the dates above specified that appellants’ briefs should have been filed much earlier than they were. Appellee recovered a money judgment upon specified vendor’s lien notes, duly signed by the appellants above named, 'and the only answer to the suit found in the pleadings was a general demurrer and a general denial, and we feel indisposed to further delay the plaintiff in the collection of her judgment by permitting appellants to now file their briefs over appellee’s objection, or to postpone the case for 30 days. We think the diligence shown is altogether insufficient, and we accordingly overrule appellants’ motion for leave to file briefs.

We, however, think we should overrule appellee’s application to dismiss the appeal, for upon examination of the record we find that the judgment rendered in favor of appellee was not only against E. B. Williams and Minervia Williams and Minervia Williams as guardian of Clifford, Milford, and Beulah McCarty, but also against the three last-named defendants, who are alleged to be children of Minervia Williams. These children defendants did not execute the notes, and we know of no authority for a judgment against them individually, except that the judgment as against these children may lawfully be against them foreclosing the vendor’s lien upon the land, for which the notes were given and to which they were grantees in the deed from appellee, Mrs. IX Patterson, at the time of the execution of the notes. The judgment will accordingly be reformed and here entered in favor of appellee, Mrs. D. Patterson, and against appellants-E. L. Williams and Minervia Williams in their individual capacity, and against Minervia Williams in her capacity as guardian, for the several sums specified in the judgment against appellants and the sureties on the supersedeas bond with a foreclosure of the vendor’s lien on the lands described in the plaintiff’s petition against all parties made defendants in the said petition, and as so reformed the judgment will be affirmed.