Miller v. Drumm Commission Co.

JOHNSON, J. Suit was brought by the Drumm Commission Company, a corporation, on a promissory note, against W. B. Miller, maker, and W. M. Briscoe, endorser. The petition was filed December 14, 1917. Demurrers, were filed January 14, 1918, and January 23, 1918, and were overruled March IS, 191S. On April 4, 1918, both defendants filed a joint answer in which they denied that they were indebted in the amount sued for and asked that certain credits be allowed. To this answer a motion to make more definite and certain was filed, and sustained by the court on February 10, 1919, and the defendants were given ten days to comply therewith. This they failed to do. On April 2, 1919. the cause was called, all parties appearing in person or by their attorneys, and both sides waiving a jury, and announcing ready for trial, the cause was tried by the court, without objection of the defendants, and judgment was entered for the plaintiff. No objection of any kind was made by the defendants at the trial. Motion for a new trial was filed on April 4, 1919, and overruled May 9, 1919. Petition in error with case-made was filed in this court November 10, 1919. Motion to dismiss the appeal on the ground that it is frivolous and without merit, and taken merely for delay, has been filed. It is well settled that where it appears from the record that the appeal is frivolous and without merit, same will be dismissed. Merryman v. McQuillan, 53 Okla. 590, 157 Pac. 319; Niles et al. v. Ga. State Sav. Ass’n, 63 Oklahoma, 163 Pac. 527. The error most strongly urged is that the court caused the case to be tried before it had been at issue for ten days before it was set for trial, and before it. was heard. But defendant’s answer had been filed nearly a year prior to the trial, and time to make such answer more definite and certain had expired more than a month prior to the trial, and the trial proceeded without any objections by the defendants. The provision of section 5043, Rev. Laws 1910, upon which defendants rely, had spent its force, and any rights which the defendants might have claimed thereunder had been waived by their negligence and lack of diligence. C., R. I. & P. R. Co. v. Pitchford, 44 Okla. 197, 143 Pac. 146. An examination of the record having disclosed that the appeal is frivolous and without merit,- and apparently for delay, the same is hereby dismissed. OWEN, O. J., and KANE. RAINEY, MC-NEILL, PITCHFORD, and BÁILEY, J.T., concur. .