Opinion
No. 31855.
December 5, 1944.
(Syllabus.)
APPEAL AND ERROR — Dismissal of frivolous appeal.
Where a motion to dismiss has been filed on the ground that the appeal is frivolous and for delay only and on an examination of the record and the response to such a motion it is disclosed that there is no issue presented by the plaintiff in error on appeal, this court may dismiss the appeal.
Appeal from District Court, Oklahoma County; Albert C. Hunt, Judge.
Action by the City of Oklahoma City ex rel. Charles R. Lane and Norman J. Futor against Lizzie Stone and others. Proceeding to vacate judgment in favor of plaintiff. From order denying application, defendants appeal. Dismissed.
Morton Perry, M. Bristow, and Moman Pruiett, all of Oklahoma City, for plaintiffs in error.
Norman J. Futor, of Oklahoma City, for defendants in error.
This is a proceeding commenced by the plaintiffs in error to set aside a sheriff's sale after confirmation and to vacate a judgment of foreclosure upon which the sale was based. A motion to dismiss was filed for the reason that the appeal is frivolous and taken for delay only. This court called for response, which was filed, and an examination of the same discloses that there is no contest presented in this court worthy of review. Assuming that this is a proper attack on the judgment, the only substantial ground alleged for vacation of the former judgment was lack of jurisdiction of the person arising by failure to serve process. The testimony of plaintiffs in error, while denying service of process as shown by the sheriff's return of summons, admitted participation without objection in the original foreclosure trial. In such case we have held that this court will dismiss the appeal. Atkinson v. Shaffer, 187 Okla. 262, 102 P.2d 943; Smith v. Graham Brown Shoe Co., 179 Okla. 559, 67 P.2d 448; Smith v. Aronoff, 179 Okla. 560, 67 P.2d 447.
The appeal is dismissed.
CORN, C.J., GIBSON, V.C.J., and RILEY, OSBORN, BAYLESS, WELCH, HURST, DAVISON, and ARNOLD, JJ., concur.