Bowers v. Cheever , 95 Okla. 71 ( 1923 )

Defendant in error has filed a motion to dismiss appeal of the plaintiff in error for the reason that the motion for a new trial was not filed within the time required by law. On November 23, 1920, the trial court sustained a demurrer to plaintiff's answer and rendered judgment for the defendant in this case. On the same day, counsel for plaintiff suggested that a motion for a new trial, alleging all the statutory grounds, be considered filed. A motion was considered filed as suggested and immediately overruled by the trial court, to which plaintiff excepted, gave notice of appeal, and on application was granted an extension of time in which to prepare and serve case-made. However, the motion for a new trial was not actually filed until January 22, 1921, 60 days after the pretended motion was overruled.

The facts in this case are the same as the facts in Clark v. Cawdell, 72 Oklahoma, 181 P. 285, in which the court said:

"The motion not having been filed within three days, as required by the statute (sec. 5035, Rev. Laws, 1910), the judgment of the lower court must be affirmed on authority of Ronne v. Hirsh, 71 Oklahoma, 178 P. 88, and Ewert v. Wills, 72 Oklahoma, 178 P. 87."

For the reasons stated, the appeal is dismissed.

All the Justices concur.