THORNBURGH v. O'BRIAN

THORNBURGH v. O'BRIAN
1951 OK 290
236 P.2d 992
205 Okla. 265
Case Number: 35103
Decided: 10/30/1951
Supreme Court of Oklahoma

(Syllabus.)

¶0 PPEAL 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, Okmulgee County; W.H. Blackbird, Judge.

Action by Mac Thornburgh against Helen O'Brian et al. to establish a one-third interest in the mineral rights in real property. From an order of the court denying the right to file an amended petition, plaintiff appeals. Dismissed.

W.J. Peterson, Okmulgee, for plaintiff in error.

D.F. Rainey, G.R. Horner, and John Barksdale, Okmulgee, for defendants in error.

CORN, J.

¶1 This is an appeal from an order of the trial court entered October 30, 1950, denying the right to file an amended petition.

¶2 A motion to dismiss has been filed and one of the grounds is that the appeal was not filed within a valid order of extension of time in which to make and serve the case-made. It is alleged that on October 30, 1950, 30 days was given in which to make and serve a case-made and that the order of extension in which to make and serve case-made was entered after the expiration of that order.

¶3 This court called for response to the motion to dismiss and none has been filed.

¶4 In Oil Fields & S.F. Ry. Co. v. Wheeler, 75 Okla. 9, 180 P. 868, it is stated:

"Where a motion to dismiss an appeal appears to have been served upon counsel for the plaintiff in error, and where no response was filed, it would be assumed that it correctly stated the condition of the record."

¶5 In French v. Bragg, 177 Okla. 43, 55 P.2d 953, it is stated:

"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."

¶6 An examination of the brief and the authorities cited reasonably sustain the position of defendants in error.

¶7 Appeal dismissed.