Opinion
No. 13014
Opinion Filed June 5, 1923. Rehearing Denied July 17, 1923.
(Syllabus.)
Appeal and Error — Dismissal — Frivolous Appeals.
Where a record presents no theory which justifies reversal of a judgment appealed from, but shows to be frivolous and without merit, the appeal may be dismissed.
Error from District Court, Canadian County; James I. Phelps, Judge.
Action by John Watts against Walter F. Goodman and another. Judgment for plaintiff, and Goodman brings error. Dismissed.
Babock Trevathan, for plaintiff in error.
L.H. Barlow, for defendants in error.
This was an action in the district court of Canadian county, by John Watts, defendant in error, against Walter F. Goodman and the First National Bank of Yukon, for the return of $500 deposited in escrow in the First National Bank of Yukon, to be paid to Walter F. Goodman, in the event a certain contract relating to real estate be consummated, but in the event such contract be not consummated, but fail, then said $500 to be returned to Watts, the depositor. The contract failed, Goodman protested against the bank's returning the $500 to Watts, and the bank refused to return the same until ordered by the court; Watts thereupon brought suit against Goodman and the bank. Thereafter the bank filed answer, disclaiming any interest in said $500 or claim to same, and asked leave of the court to deposit same in court and be released from the controversy. The court granted this power, and the $500 was paid into court, subject to its order and the bank released; thereafter Goodman filed motion for judgment as follows:
"Comes now the above-named defendant, Walter P. Goodman, and moves the court for judgment against the said plaintiff, that the plaintiff take nothing by his action and for costs."
The court overruled this motion, and Goodman having failed to answer, the court rendered judgment directing the clerk to pay over the $500 to Watts. Goodman appeals from the judgment, making the First National Bank of Yukon and John Watts defendants in error.
The petition in error and case-made was filed here February 1, 1922. Defendant in error filed motion to dismiss appeal on the ground, among other things, that the appeal was without merit, was frivolous, and taken for delay Service of this motion was accepted April 11, 1922. On May 19, 1922, plaintiff in error filed an amended petition in error, but has made no response to the motion to dismiss appeal. The appeal is manifestly frivolous and without merit. Upon the record presented there is no theory upon which this court could justify reversing the judgment appealed from.
Upon authority of Kirkland v. Trezevant, 38 Okla. 445, 134 P. 1198, citing Johnson v. St. Paul Co. (Minn.) 701 N.W. 619, and followed by this court in Skirvin v. Goldstein, 40 Okla. 315, 137 P. 1177, the motion to dismiss is sustained and the appeal dismissed, for the reason that it is manifestly frivolous and wholly without merit.
JOHNSON, C. J., and KANE, KENNAMER, and BRANSON, JJ., concur.