BAKER v. MARCUS

BAKER v. MARCUS
1951 OK 54
228 P.2d 633
204 Okla. 224
Case Number: 32794
Decided: 03/06/1951
Supreme Court of Oklahoma

(Syllabus.)

¶0 APPEAL AND ERROR - Dismissal of frivolous appeal. Where a motion to dismiss has been filed upon the ground that the appeal is without merit and for the purpose of delay only, and, upon an examination of the record, the brief of plaintiff in error, and the motion to dismiss, it is shown that there is no issue presented, the appeal will be dismissed.

Appeal from District Court, Oklahoma County; Albert C. Hunt, Judge.

Action in forcible entry and detainer by Herman Marcus against R.R. Baker. From judgment for plaintiff, defendant appeals. Dismissed.

Hall & Cotton, Oklahoma City, for plaintiff in error.

Robert O. Swimmer, Oklahoma City, for defendant in error.

O'NEAL, J.

¶1 Plaintiff commenced an action to recover possession of a dwelling house in Oklahoma City, Oklahoma, and was successful both in the justice of the peace court and in the district court of Oklahoma county.

¶2 The defendant has appealed and states that the sole issue presented is that the 30-day notice to terminate tenancy does not comply with the law because it fails to state the plaintiff owned or acquired an enforceable right to buy or right to possession of the premises prior to the effective date of the O.P.A. Rent Regulation Law.

¶3 The defendant offered no testimony in either the justice of the peace court, or in the district court, and the only defense made was to object to the certificate offered in evidence which plaintiff had obtained from the Federal Rent Control Authority and the notice to quit offered by the plaintiff.

¶4 The only case cited by defendant is Wrenn v. Sutton, 65 C.A. 2d 823, 150 P.2d 589. This case is not in point and the question involved therein is not involved in this proceeding. There was no issue as to whether the action was commenced by a purchaser who acquired the property prior to or after the effective date of the Federal Rent Control Act and a cursory review of the proceeding so shows, and further discloses that plaintiff fully complied with the regulations of the Federal Rent Control Authority and received a certificate authorizing him to proceed under the state law.

¶5 We have held in a number of cases that where, from a cursory examination of the record, motion to dismiss and brief of the plaintiff in error, it is shown that there is no contest presented to this court, an appeal based upon such proceeding will be dismissed as without merit. Smith v. Aronoff, 179 Okla. 560, 67 P.2d 447; Smith v. Graham Brown Shoe Co., 179 Okla. 559, 67 P.2d 448; Barker v. Chase, 128 Okla. 38, 260 P. 1063.

¶6 Appeal dismissed.

¶7 ARNOLD, C.J., LUTTRELL, V.C.J., and WELCH, GIBSON, DAVISON, HALLEY, and JOHNSON, JJ., concur. CORN, J., dissents.