JOHNSON v. R. C. MILLS PRODUCE CO.

JOHNSON v. R. C. MILLS PRODUCE CO.
1933 OK 184
21 P.2d 1053
163 Okla. 121
Case Number: 23423
Decided: 03/21/1933
Supreme Court of Oklahoma

JOHNSON
v.
R. C. MILLS PRODUCE CO.

Syllabus

¶0 Appeal and Error--Dismissal--Frivolous Appeals.
Where a motion to dismiss an appeal has been filed, and an examination of the record and the brief and authorities of plaintiff in error disclose that the appeal is manifestly without merit and for the purpose of delay only, and no response has been filed to the motion to dismiss or excuse offered for the failure to respond, this court may at its discretion dismiss the action.

Appeal from Court of Common Pleas, Tulsa County; Bradford J. Williams, Judge.

Action by the R. C. Mills Produce Company against Grant Johnson et al. in replevin for chattels under note and mortgage. From a judgment for plaintiff, defendant appeals. Dismissed.

B. C. Franklin, for plaintiffs in error.
J. A. Denny and Virgil P. Wilson, for defendant in error.

PER CURIAM.

¶1 This is an appeal from a judgment in replevin in which the answer admits the execution of the note and mortgage sued upon, but alleges a contemporaneous oral agreement that same would not be foreclosed.

¶2 There is no allegation of fraud, nor that defendant was in any way deceived or damaged by the act of the plaintiff.

¶3 On the 15th day of September, 1931, the court entered judgment upon the pleadings for the plaintiff.

¶4 The appeal was filed herein March 14, 1931, and on the 27th day of May, 1932, a motion to dismiss was leveled at the appeal based upon the fact and the law that the appeal is upon its face without merit and for delay only. No response has been filed to this motion to dismiss.

¶5 This court has consistently held that where, from an examination of the record and the brief of plaintiff in error, the appeal appears to be frivolous and without merit and for the purpose of delay only; and upon those grounds the defendant in error files his motion to dismiss, to which motion no response is filed by the plaintiff in error or further notice taken thereof or excuse given for failure to respond thereto, this court may in its discretion dismiss the appeal as frivolous and without merit.