Plaintiffs in error, nonresidents, perfected their appeal from an order of the court below refusing to vacate judgment under the sections of our statute.
Defendants in error have filed motion to dismiss on the grounds the appeal is frivolous, and urges that the cases cited have long held that the relief prayed for by plaintiffs in error cannot be granted under their petition, and that the assignments of error in overruling the application are not argued, but only propositions of law are argued which would avail the petitioners, if the Judgment had been opened by the court below. Numerous authorities apparently well supporting both rules are set out at length. No response has been filed by the plaintiffs in error, nor time obtained to do so, nor has excuse been offered for the failure to file response.
Where the appeal is taken and authorities cited controvert a rule well established by this court, the appeal is without merit and may be dismissed as frivolous. Keel v. Pioneer Mortgage Co., 137 Okla. 9, 278 P. 1114.
Where tile defendant in error has filed motion to dismiss and no response has been filed thereto, and no excuse offered for failure to so respond, and the authorities and arguments of defendant in error reasonably support the application for dismissal, the appeal may, in the discretion of the court, be dismissed. Norman v. Norman, 86 Okla. 201, 207 P. 970; Moody v. Moody, 86 Okla. 258, 207 P. 973. It appearing, therefore, that both of the above rules apply in this cause, the action is dismissed.