(Syllabus by the Court.)
Appeal and Error — Frivolous Appeal — Dismissal.
Where upon an examination of the record, petition in error, and the motion to dismiss it appears that the appeal is manifestly frivolous and without merit, the appeal will be dismissed.
OWEN, C. J.
The only error assigned is that the court erred in rendering judgment because plaintiff failed to file an affidavit in the lower court showing that defendant was not in the military service of the United States.
It appears from the record that the summons was served on defendant in person; that defendant appeared in person in open court and was granted leave to file his answer out of time, but did not file same, and has made no attempt to controvert the allegations of the petition; that he has taken the full time in filing his supersedeas bond, the preparation of his case-made, and filing his petition in error.
The motion to dismiss, to which no response has been made, is on the ground that the appeal is frivolous and without merit.
Under section 200, art. 2, Act of Congress of March 8, 1918, H. R. 6361, the military affidavit is required to be filed by the plaintiff only where there is a default of an appearance by the defendant. In this case there was an appearance in person in open court, and no showing to the effect that defendant was in military service. Howie Mining Co. v. McGary, 256 Fed. 38.
An examination of the record convinces that the defendant had no defense to plaintiff's cause of action, and that this appeal, filed for the purpose of delay, is, therefore, a frivolous proceeding. The appeal will be dismissed. Merryman v. McQuillan, 53 Okla. 590, 157 P. 319; Bilby v. Continental Gin Co., 53 Okla. 316, 156 P. 199; Culbertson v. Walton Trust Co., 49 Okla. 103, 152 P. 355; Brown v. Starkweather, 49 Okla. 259, 152 P. 371.
KANE, RAINEY, JOHNSON, and McNEILL, JJ., concur.