WHELCHEL v. HEMBREE

WHELCHEL v. HEMBREE
1949 OK 81
205 P.2d 279
201 Okla. 295
Case Number: 33859
Decided: 04/19/1949
Supreme Court of Oklahoma

Syllabus

¶0 APPEAL AND ERROR - Dismissal of frivolous appeal.
Where a proceeding to review a judgment of the trial court is filed in the Supreme Court and upon the presentation of a motion to dismiss the appeal as frivolous the plaintiffs in error are directed to respond and no response is filed and no excuse for failure to respond is made, this court may, in its discretion, dismiss the appeal as frivolous.

Appeal from District Court, Adair County; E.A. Summers, Judge.

Proceeding by O.L. Whelchel et al. against Ray Hembree et al. to declare an election illegal and void. From a judgment for defendants, plaintiffs appeal. Dismissed.

E.B. Arnold, of Stilwell, for plaintiffs in error.

John A. Goodall, of Stilwell, for defendants in error.

O'NEAL, J.

¶1 This is a proceeding by O.L. Whelchel et al., to have declared illegal and void an election in a school district in Adair county.

¶2 Judgment was for the defendants, and the plaintiffs appeal.

¶3 The appeal was lodged in this court October 15, 1948, and thereafter, on October 20th, the defendants in error filed a motion to dismiss on the ground that the appeal is frivolous and taken for delay only. On the 23rd day of November, 1948, this court directed the plaintiffs in error to respond to the motion to dismiss. No response has been filed and no excuse for failure to respond has been made to this court. Under such circumstances, as held in Gartrell v. Federal Land Bank, 180 Okla. 523, 71 P.2d 489, it is not the duty of this court to search for some theory of merit in the proceeding on appeal, but it may, in its discretion, dismiss the appeal as taken for delay only and without merit.

¶4 Under the rule announced, the appeal is dismissed.