Opinion
No. 7379
Opinion Filed October 12, 1915.
APPEAL AND ERROR — Frivolous Appeal — Dismissal. Where upon an examination of the record, petition in error, and the motion to dismiss, it appears that the appeal is manifestly frivolous and without merit, the appeal will be dismissed.
(Syllabus by the Court.)
Error from District Court, Stephens County; Frank M. Bailey, Judge.
Action by T.M. Beckett against J.R. Greenless and another, copartners doing business as Greenless. Brothers. Judgment for plaintiff, and defendants bring error. Dismissed.
Womack Brown, for plaintiffs in error.
Bond Sandlin and McLaury Hopps, for defendant in error.
On December 10, 1913, defendant in error filed suit in the district court of Stephens county, against plaintiffs in error, for a balance due on contract for drilling a well. The petition set up the contract for drilling, its partial performance by defendant in error, its alteration at the behest of plaintiffs in error, and the compliance of defendant in error with the altered contract; and prayed for judgment for balance due thereon. On the 13th day of April, 1914, plaintiffs in error filed their answer, in which is admitted the contract, its partial performance, and its alteration, but they allege negligence in the performance of the altered contract, and pray judgment against defendant in error in the sum of $2,000 as a counterclaim. To this answer, reply, in the form of general denial, was filed by defendant in error on the 12th day of November, 1914, and upon the issues thus made the case went to trial on the same day, November 12, 1914, to a jury, which resulted in a judgment for defendant in error as prayed in his petition. Plaintiffs in error filed motion for new trial, which was overruled on the 26th day of November, 1914, and the cause was brought here for review.
Defendant in error files motion to dismiss appeal for the reason that same is frivolous, and no response has been filed thereto. The petition in error alleges that the trial court erred in overruling motion for new trial, in instructing a verdict against plaintiffs in error, and in the admission and rejecting of evidence at the trial. An examination of the record in this case shows that the evidence of plaintiff below was undisputed, and the defendants offered no evidence whatever to sustain the allegations set up in their answer and cross-petition, and to controvert that offered by plaintiff. The motion to dismiss must be sustained, for the reason that the appeal is frivolous.
In Skirvin v. Goldstein et al., 40 Okla. 315, 137 P. 1177, the court said:
"This court has the inherent power to dismiss an appeal which is manifestly frivolous." Kirkland v. Trezevant et al., 38 Okla. 445, 134 P. 1198; Myers v. Hunt, 45 Okla. 140, 145 P. 328; Dean v. Storm, 47 Okla. 358, 148 P. 732; Hollister v. Kory, 47 Okla. 568, 149 P. 1136.
Upon authority of the above cases, the appeal is dismissed.
All the Justices concur.