This is an appeal from a judgment in replevin in which the answer admits the execution of the note and mortgage sued upon, but alleges a contemporaneous oral agreement that same would not bo foreclosed.

There is no allegation of fraud, nor that defendant teas in any way deceived or damaged by the act of the plaintiff.

On the 15th day of September, 1931. the court entered judgment upon the pleadings for tile plaintiff.

*122 The appeal was filed herein March 14, 1831, and on the 27th day of May, 1932, a motion to dismiss iwas leveled at the appeal based upon the fact and the law that the appeal is upon its face without merit and for delay only. No response has been filed to this motion to dismiss.

This court has consistently held that where, from an examination of the record and the brief of plaintiff in error, the appeal appears to he frivolous and without merit and for the purpose of delay only; and upon those grounds the defendant in error files his motion to dismiss, to which motion no response is filed by the plaintiff in error or further notice taken thereof or excuse given for failure to respond thereto, this court may in its discretion dismiss the appeal as frivolous and without merit.

The appeal is, therefore, dismissed.