Opinion
No. 29728.
May 7, 1940. Rehearing Denied May 28, 1940.
(Syllabus.)
APPEAL AND ERROR — Dismissal of frivolous appeals.
Where, upon examination of the record, petition in error, and the motion of the defendant in error to dismiss, it appears that the appeal is manifestly frivolous and without merit, the appeal will be dismissed.
Appeal from Court of Common Pleas, Tulsa County; Grady S. Cornett, Judge.
Action on account by the Fizz-O Water Company against Earl Offutt d/b/a Tulsa Refrigeration Service. From an order of the court of common pleas dismissing the appeal from the justice of the peace court, defendant appeals. Dismissed.
W.L. Shirley, of Tulsa, for plaintiff in error.
Donald L. Brown, of Tulsa, for defendant in error.
Plaintiff in error has appealed from an order of the court of common pleas of Tulsa county dismissing an appeal from the justice of peace court, and it is admitted that if, under section 979, O. S. 1931, 39 Okla. St. Ann. § 212, the plaintiff in error did not have a right to file an appeal within ten days from the date of the order overruling motion for new trial filed in the justice of peace court, then the court of common pleas was without jurisdiction and properly dismissed the appeal. Defendant in error has moved to dismiss for the reason that the appeal is without merit and taken for delay only. We are of the opinion that the cause should be dismissed. Since McCullough v. Root, 64 Okla. 73, 166 P. 735, this court has held that it is not necessary to file a motion for new trial after a judgment in the justice of peace court. Therefore, the appeal must be taken within ten days from the date of the judgment rendered.
This court has held that where, upon examination of the record, petition in error, and the motion to dismiss, it appears that the appeal is without merit, same will be dismissed. Skirvin v. Bass Furniture Carpet Co., 43 Okla. 440, 143 P. 190; Whitney v. Harris, 157 Okla. 186, 11 P.2d 153; Smith v. Graham Brown Shoe Co., 179 Okla. 559, 67 P.2d 448.
The appeal is dismissed.
BAYLESS, C. J., WELCH, V. C. J., and HURST, DAVISON, and DANNER, JJ., concur.