WADE v. HOME & FARM S&L ASSN.

WADE v. HOME & FARM S&L ASSN.
1925 OK 618
238 P. 465
113 Okla. 62
Case Number: 16297
Decided: 07/14/1925
Supreme Court of Oklahoma

WADE et al.
v.
HOME & FARM SAVINGS & LOAN ASSN.

Syllabus

¶0 Appeal and Error--Dismissal--Frivolous Appeal.
Where a motion is filed to set aside a judgment for fraud, and which does not setforth the judgment and defense to the action, and no summons is issued and served and a motion to quash on special appearance is sustained, an appeal therefrom will be dismissed as frivolous and for delay.

Error from District Court, Pontotoc County; J. W. Bolen, Judge.

Action between Benjamin Wade et al. and the Home and Farm Savings & Loan Assn. From the judgment the former bring error. Dismissed.

B. C. Wadlington and A. W. Wadlington, for plaintiffs in error.
Busby & Harrell, Wimbish & Duncan, and James W. Cosgrove, for defendant in error.

PER CURIAM

¶1 This is a case appealed from the district court of Pontotoc county. Judgment was rendered on the 24th day of March, 1924. On the 27th day of September, 1924, plaintiff filed a motion to set the judgment aside for fraud, the time having expired in which to perfect an appeal. On the same day the court made an order staying proceedings to enforce the judgment until the motion was heard. Defendant in error appeared specially and moved the court to strike the motion on the ground that under section 812, Comp. Stats. 1921, the proceedings should have been by petition duly verified, setting forth the judgment and defense to the action and the issuance and service of summons. On the 16th day of December, 1924, motion to strike was sustained. Motion for a new trial was overruled, and the plaintiffs in error excepted and gave notice of appeal. The motion to set aside the judgment sets forth no defense to the action, does not set up the judgment, and no summons was issued or served. The trial court found, among other things, that the motion was not filed in good faith, but purely for delay. This appeal is clearly frivolous and for delay, as no possible relief can be granted under the motion.