Wade v. Hope & Killingsworth , 77 Okla. 62 ( 1919 )

From a judgment in favor of Hope Killingsworth, entered October 15, 1915, Wade prosecuted error to this court, and his appeal was dismissed (65 Oklahoma, 162 P. 742). He filed an application in the trial court for new trial, and from a judgment denying that application he again appealed to this court, where the judgment of the lower court was affirmed (74 Oklahoma, 176 P. 402), for the reason that his application was not filed within one year after final judgment was rendered in the trial court. He then filed a motion to vacate the order overruling his motion for new trial. Upon consideration of this motion, and after permitting the introduction of evidence and argument of counsel, the trial court refused to grant the relief prayed and sustained a motion by defendants in error to strike Wades' motion from the files. From that judgment this appeal is prosecuted.

A motion to vacate an order overruling motion for new trial can serve no purpose but to take the place of an application or petition for new trial, and does not have the effect of extending the time in which the trial court may reconsider its order denying a motion for new trial beyond the term at which the same was made, as provided by section 5035, Rev. Laws 1910, or to extend the time in which a petition for new trial may be filed under the provisions of section 5037, of this statute, which requires same to be filed within one year from the date of the final judgment. Owen v. Dist. Ct. of Okla. Co.,43 Okla. 442, 143 P. 17; Continental Gin Co. v. Arnold, 66 Oklahoma,167 P. 613; Dorland v. Cunningham, 66 Cal. 484, 6 P. 135.

The appeal, therefore, is dismissed.

RAINEY, PITCHFORD, McNEILL, and HIGGINS, JJ., concur.