TURK BROS. Inc. et al v. BREWER Ex'x.

TURK BROS. Inc. et al v. BREWER Ex'x.
1932 OK 421
11 P.2d 926
157 Okla. 200
Case Number: 22668
Decided: 05/24/1932
Supreme Court of Oklahoma

TURK BROS., Inc., et al.
v.
BREWER, Ex'x.

SyllabusC

¶0 1. Appeal and Error--Sufficiency of Evidence in Law Action Tried to Court.
In a law action tried to the court, where there is competent evidence reasonably tending to support the findings and judgment of the court, such judgment will not be disturbed on appeal.
2. Appeal and Error -- Frivolous Appeal Dismissed.
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.
3. Same--Rendition of Judgment on Supersedeas Bond Upon Affirmance.
Where an appeal is perfected to this court and said appeal is dismissed because it is manifestly frivolous, the dismissal is in effect an affirmance of the judgment, and where attention is called to the supersedeas bond incorporated in the record, this court will, in proper cases, render judgment on said bond.

Appeal from District Court, Tulsa County; Harry L. S. Halley, Judge.

Action by Eugenia Brewer, executrix of the estate of Charles W. Brewer, deceased, against Turk Brothers, Inc., Maurice Blumenfeld, W. C. Turk, and E. Turk, upon a note for $ 3,300, interest and attorney fees. From a judgment in favor of the plaintiff, defendants appeal. Appeal dismissed and judgment rendered on supersedeas bond.

Mills & Cohen, for plaintiffs in error.
Randolph, Haver, Shirk & Bridges, for defendant in error.

PER CURIAM.

¶1 This is an appeal from the district court of Tulsa county, Okla., by Turk Brothers, Inc., et al., defendants below, from a judgment rendered by the court in favor of the defendant in error, plaintiff below, on a promissory note, in the sum of $ 3,768.60, with interest at 8 per cent. per annum from January 27, 1931, attorney fee of $ 391.86 and costs assessed at $ 15.50.

¶2 Plaintiffs in error filed petition in error and case-made on August 1, 1931, and on August 4, 1931, defendant in error filed motion to dismiss the appeal on the grounds that the appeal is manifestly frivolous and without merit, and requesting judgment on the supersedeas bond. On October 13, 1931, upon application of plaintiffs in error, this court entered an order granting 60 days from said date in which to file brief, and on February 16, 1932, another order was entered granting plaintiff in error 30 days from said date to file brief. No brief nor response to the motion to dismiss the appeal has been filed by plaintiffs in error and no showing made why the same has not been filed, and in this situation the court may presume that plaintiffs in error have abandoned their appeal.

¶3 The action was instituted by defendant in error for recovery on a promissory note. The plaintiffs in error, as defendants below, first filed answer in the nature of an unverified general denial, and then an amended answer admitting the execution of the note, but alleging that the defendants were accommodation makers; and on January 4, 1930, the defendants filed a second amended answer alleging payment of the note. On January 27, 1931, a jury being waived, the case was tried to the court. The plaintiff introduced the note sued on, offered oral testimony tending to show ownership and that said note was unpaid and constituted an outstanding indebtedness of the defendants; whereupon, the defendants offered no evidence of any kind in support of any of the allegations contained in their answer filed, and the court rendered judgment for the plaintiff and against the defendants, and each of them, for the amount sued for, and ordered the note canceled in judgment. The court made a general finding that all of the allegations of the plaintiff's petition were true and that the defendants and each of them, are indebted to the plaintiff in the sum sued for, and rendered judgment accordingly. The defendants moved for a new trial on the following grounds, to wit:

"1. That the decision of the court is not sustained by sufficient evidence and is contrary to law.

"2. Errors of law occurring at the trial and excepted to by these defendants at the time."

¶4 The petition in error assigns the following grounds for reversal:

"1. That the court erred in rendering judgment in favor of the plaintiff and against the defendants for the reason that the said judgment is not sustained by sufficient evidence, and is contrary to law.

"2. That upon the evidence the court erred in not rendering judgment in favor of the defendants and against the plaintiff.

"3. The court erred in overruling the motion of the defendants for a new trial."

¶5 It has been repeatedly held by this court that where, in a law action, there is competent evidence reasonably tending to support the findings and judgment of the court, such judgment will not be disturbed on appeal. Oliphant v. Garman, 144 Okla. 147, 290 P. 181, and cases therein cited.

¶6 "Where, upon examination of the record, petition in error, and motion to dismiss, it appears that the appeal is manifestly frivolous and without merit, the same will be dismissed." Jordan Furniture Co. v. Graham, 156 Okla. 218, 10 P.2d 394; Farmers' State Bank v. Hess, 138 Okla. 190, 280 P. 305; Schwarze v. New Amsterdam Casualty Co. of Maryland, 136 Okla. 51. 275 P. 640; Burton v. Graves, 135 Okla. 35, 273 P. 898; Bronaugh v. Exchange National Bank of Ardmore, 86 Okla. 220, 207 P. 728.

¶7 Upon the record as filed in this court and under the authorities cited, the appeal is manifestly frivolous and without merit, and the motion of the defendant in error to dismiss is sustained and the appeal dismissed.

¶8 Where an appeal is dismissed by the Supreme Court for the reason it is manifestly frivolous, the effect is to affirm the judgment of the trial court. The supersedeas bond with Turk Brothers, W. C. Turk, and E. Turk as principals and Mrs. Pauline Turk and L. E. Trope as sureties thereon, is incorporated in the case-made, and in the motion to dismiss defendant in error requests judgment on the supersedeas bond and against the sureties thereon.