Burgess v. Crump , 88 Okla. 126 ( 1923 )

George C. Crump, the defendant in error, has filed motion to dismiss this appeal prosecuted by John Burgess and Jaenette Burgess, plaintiffs in error, and for grounds of the motion states that this action was instituted in the district court of Seminole county by the defendant in error, as plaintiff in the trial court, to recover upon a promissory note secured by chattel mortgage on personal property. The petition filed by the plaintiff in the district court was in usual form for an action to recover upon a promissory note, and had attached to it as exhibits copies of the note and mortgage upon which the plaintiff sought to recover. The defendants in the action filed an unverified general denial as their answer. Plaintiff filed motion for judgment on the pleadings, which the trial court sustained and rendered judgment in favor of the plaintiff. The motion to dismiss the appeal is upon the specific grounds that the same is frivolous.

It is plain that under numerous authorities of this court the motion to dismiss must be sustained. In Bilby v. Cochran et al., 47 Okla. 545, 149 P. 143, this court held:

"Where plaintiff sues upon a promissory note and defendant answers by unverified general denial, and upon motion of plaintiff judgment is rendered for plaintiff on the pleadings, an appeal, assigning the rendition of such judgment as error, without stating any defense to plaintiff's action, will be dismissed as frivolous."

Other authorities to the same effect are: Bilby et al. v. National Reserve Bank of Kansas City, Mo., 53 Okla. 566,157 P. 1198; Buell v. Oil Well Supply Co., 76 Okla. 174,184 P. 572; Miller et al. v. Dunn Commission Co., 77 Okla. 119,187 P. 213.

In view of the well-established rule by these authorities, the motion to dismiss the appeal herein is sustained, and the appeal dismissed.

JOHNSON, V. C. J., and McNEILL, KANE, NICHOLSON, and BRANSON, JJ., concur.