Opinion
No. 23746
Opinion Filed February 28, 1933. Rehearing Denied June 27, 1933.
(Syllabus.)
1. Appeal and Error — Dismissal — Frivolous Appeals.
Where plaintiff in error appeals to this court, and the only authorities cited and arguments made are contrary to a well-established rule of the court, the appeal may, at the discretion of the court, be dismissed as without merit.
2. Same — Failure of Plaintiff in Error to Respond to Motion to Dismiss.
Where the plaintiff in error has failed to respond to motion to dismiss or offer any excuse for the failure so to do, and the examination of authorities cited in the motion to dismiss reasonably support the motion, this court may, in its discretion, dismiss the appeal.
Appeal from District Court, Oklahoma County; Sam Hooker, Judge.
Action by James S. Twyford and others against Gussie E. Scott and others to quiet title. Judgment for plaintiffs, petition to vacate judgment denied, and defendants appeal. Dismissed.
W.A. Chase, Robert Burns, and Lynn Adams, for plaintiffs in error.
T.G. Chaknbers, Jr., and Twyford Smith, for defendants in error.
Plaintiffs in error, nonresidents, perfected their appeal from an order of the court below refusing to vacate judgment under the sections of our statute.
Defendants in error have filed motion to dismiss on the grounds the appeal is frivolous, and urges that the cases cited have long held that the relief prayed for by plaintiffs in error cannot be granted under their petition, and that the assignments of error in overruling the application are not argued, but only propositions of law are argued which would avail the petitioners, if the Judgment had been opened by the court below. Numerous authorities apparently well supporting both rules are set out at length. No response has been filed by the plaintiffs in error, nor time obtained to do so, nor has excuse been offered for the failure to file response.
Where the appeal is taken and authorities cited controvert a rule well established by this court, the appeal is without merit and may be dismissed as frivolous. Keel v. Pioneer Mortgage Co., 137 Okla. 9, 278 P. 1114.
Where tile defendant in error has filed motion to dismiss and no response has been filed thereto, and no excuse offered for failure to so respond, and the authorities and arguments of defendant in error reasonably support the application for dismissal, the appeal may, in the discretion of the court, be dismissed. Norman v. Norman, 86 Okla. 201, 207 P. 970; Moody v. Moody, 86 Okla. 258, 207 P. 973. It appearing, therefore, that both of the above rules apply in this cause, the action is dismissed.