(Syllabus.)
Appeal and Error — Dismissal Where Appeal Is for Delay Only.
Where a motion to dismiss has been filed, which challenged the jurisdiction of this court, and upon a review of the record, to sustain the motion to dismiss, it becomes apparent that there is no controversy before the court, and that the appeal is for delay only, such appeal will be dismissed.
PER CURIAM.
The parties will be referred to as they appeared in the trial court. Plaintiff obtained a judgment upon an open account and afterwards filed a motion for new trial, which was overruled, and the appeal is brought to this court and a motion was filed to dismiss upon the ground that the judgment was taken upon a motion for judgment on the pleadings and that no motion for new trial or order thereon was necessary.
Upon examination of the record it appears that judgment was entered upon the admissions of the defendant in the trial court, which admissions indicate plainly to this court that there was no serious contest of the account sued upon.
We have carefully reviewed the record in this cause, and are of the opinion that the appeal is frivolous and should be dismissed and the judgment of the trial court affirmed. It is so ordered.
McNEILL, C. J., OSBORN, V. C. J., and PHELPS, CORN, and GIBSON, JJ., concur.