Martin v. Martin , 107 Okla. 39 ( 1924 )

This proceeding grew out of a divorce action. In that action defendant in error here secured a decree of divorce from plaintiff in error, judgment for division of the property, and temporary alimony. After a final disposition of an appeal to this court in the case plaintiff filed an application to modify the judgment for division of the property, for an accounting of the property to be divided, and for an order directing the payment of alimony due and unpaid. Defendant filed a motion to strike the application. On January 7, 1923, a hearing was had on the application and an order entered disposing of the questions therein presented. On March 5th, following, the motion of plaintiff in error for a new trial in the matter was overruled. To review these proceedings a petition in error with case-made attached was filed in this court July 5, 1923.

The questions of fact contested in this proceeding did not arise on pleadings, but upon the application filed after the case was closed. In these circumstances the motion for new trial was not necessary to preserve the errors complained of in the hearing; therefore, the motion for new trial and the ruling of the court thereon could not operate to extend the time in which to perfect the appeal. McDonnell v. Continental Supply Co. et al., 79 Okla. 286, 193 P. 524. The order sought to be reviewed was entered January 7, 1923, the appeal was not filed until July 5, 1923, more than six months thereafter.