BARHAM v. GILBERT

BARHAM v. GILBERT
1936 OK 625
65 P.2d 515
178 Okla. 15
Case Number: 26776
Decided: 10/20/1936
Supreme Court of Oklahoma

BARHAM, Adm'r, et al.
v.
GILBERT, Rec.

Syllabus

¶0 APPEAL AND ERROR - Dismissal as to One of Defendants in Error Upon Motion and Admission of Parties.
Where a motion to dismiss is filed on the ground that there is no contest between the plaintiffs in error and one of the defendants in error, and the plaintiffs in error file a response which in effect admits the motion, this court in its discretion may dismiss the appeal as to such defendant in error.

Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.

Action by John I. Gilbert, receiver of Gum Brothers Company, against Earl Barham, administrator of estate of Lorena Bell Barham, and others to foreclose mortgage. From adverse judgment certain defendants appeal. On motion to dismiss as to John I. Gilbert, receiver, motion sustained.

S.A. Horton, for plaintiffs in error.
A.K. Little, for defendants in error.

PER CURIAM.

¶1 This is an appeal from a judgment in foreclosure. A judgment was obtained by the Prudential Insurance Company of America on its cross-petition foreclosing its mortgage on certain real property. John I. Gilbert, as receiver of Gum Brothers, a corporation, was also awarded a judgment. In the brief of the plaintiff in error it is stated:

"The only point involved in this case is that the Prudential Insurance Company was a nonresident corporation doing a general loan business in the state of Oklahoma and has never complied with sections 131, 132, and 135 of the Compiled Laws of 1931, and has not complied with section 43, article 9, of the Constitution of the state of Oklahoma, and cannot maintain a suit on the contract sued on."

¶2 John I. Gilbert, as receiver of Gum Brothers Company, has filed a motion to dismiss for the reason that there is no contest upon the right of John I. Gilbert as receiver to have his judgment.

¶3 Response to the motion has been filed, which is in effect an admission of this motion, and we see no reason to trouble the receiver with the necessity of filing a brief, and the motion to dismiss is therefore sustained without prejudice to the plaintiffs in error to have determined the question remaining between the plaintiffs in error and the Prudential Insurance Company of America.