0DUKE v. CITY OF CHECOTAH ex rel. HALL

0DUKE v. CITY OF CHECOTAH ex rel. HALL
1943 OK 249
146 P.2d 120
193 Okla. 549
Case Number: 31405
Decided: 06/22/1943
Supreme Court of Oklahoma

DUKE et al.
v.
CITY OF CHECOTAH ex rel. HALL et al.

Syllabus

¶0 APPEAL AND ERROR -- Dismissal of appeal on jurisdictional grounds in accordance with motion where no response filed.
Where the defendant in error has filed a motion to dismiss upon jurisdictional grounds, and this court has ordered the plaintiff in error to respond thereto and no response has been filed, it is not the duty of this court to inquire further into the jurisdiction where the authorities cited by the movant reasonably sustain the lack of jurisdiction.

Appeal from District Court, McIntosh County; R. W. Higgins, Judge.

Action upon municipal bond by the City of Checotah ex rel. Fletcher Hall et al. against M. Duke et al. From a judgment for the plaintiffs, defendants appeal. Dismissed as to M. Duke.

White & White, of Eufaula, and Milam M. King, of Checotah, for plaintiff in error.
B. H. Tabor, of Checotah, for defendant in error.

PER CURIAM.

¶1 Various defendants appear herein as plaintiffs in error appealing from an adverse judgment of the city of Checotah ex rel. Fletcher Hall et al., obtained in the district court.

¶2 A motion to dismiss has been filed for the reason that the plaintiff in error, M. Duke, failed to give notice in open court of the intention to appeal within ten days as provided by 12 O. S. 1941 § 954.

¶3 This court ordered M. Duke to respond to the motion to dismiss and none has been filed. In French v. Bragg, 177 Okla. 43, 55 P.2d 953, we held that where a motion to dismiss has been filed and the same is supported by argument and authorities which reasonably sustain the lack of jurisdiction of this court, it is not the duty of this court to search for some theory upon which to sustain the appeal, but that it may in its discretion dismiss the appeal. We have examined the argument and authorities cited by the defendant in error and they reasonably support the motion to dismiss.

¶4 The appeal of M. Duke is therefore dismissed.

¶5 CORN, C. J., GIBSON, V. C. J., and RILEY, OSBORN, BAYLESS, WELCH, HURST, and ARNOLD, JJ., concur. DAVISON, J., absent.