Roberts v. Sims , 111 Okla. 1 ( 1924 )

The matters complained of in the petition in error are matters which arose during the trial of the case and a motion for new trial is necessary to a consideration of these alleged errors in this court. The verdict and judgment in this case were entered April 20, 1923, and the motion for new trial was thereafter filed April 24th. The motion for new trial was considered and acted upon by the trial court May 3, 1923. It is provided by Comp. Stat. 1921, sec. 3072, that the terms of district court in Rogers county shall begin on the first Monday in May and December, respectively. It thus appears that this motion for new trial was filed during the December, 1922, term of said court, and that it was considered and acted upon by the court during the May 1923, term thereof. It has been held by this court that after a final decree or judgment has been rendered, and the term expires, there must be substantial compliance with the terms of the statute relating to motions for new trial in order to give the court further jurisdiction to consider the same. McAdams v. Latham, 21 Okla. 511,96 P. 584; Reily v. Robertson, 29 Okla. 161, 115 P. 877; Gardner et al. v. Blanton et al., 80 Okla. 143, 194 P. 1084.

It is conceded that the motion for new trial was not filed in conformity with the provisions of Comp. Stat. 1921, sec. 574 but that same was filed four days after the entry of the verdict and judgment. Upon the hearing of the motion for new trial a stipulation was entered into between the parties, which is copied in full in the former opinion by Commissioner Ray. As was said by Justice Kane in Hasting et al. v. Donnell,38 Okla. 341, 132 P. 1085, where a similar excuse presenting even stronger extenuation was offered:

"Such a showing might have been addressed to the discretion of the court below, who probably could have granted relief under the 7th subdivision of section 6094, Compiled Laws 1909 (Comp. Stat. 1921, sec. 810), but in our judgment it is not sufficient to excuse (non) compliance with section 5827, supra (sec. 574 supra)."

For the reason herein stated and upon the authorities herein cited and quoted from, the opinion of Commissioner Ray, in which he holds that the motion for new trial in this case was ineffectual for any purpose, and, therefore, that the case-made containing said motion presents nothing which this court is authorized to review, and affirming the judgment of the lower court for those reasons, is correct and should be adhered to as the opinion of this court.

After concluding his opinion, Commissioner Ray entered judgment on the supersedeas bond pursuant to motion contained in the brief of defendant in error, and under the authority of Rule 11 of this court. In entering this judgment on the supersedeas bond, Commissioner Ray inadvertently entered judgment for the face of the bond, which is double the amount of the judgment. This should, of course, be corrected so that the judgment entered here will be for the sum of $1,250 instead of $2,500 with interest thereon at the rate of 6 per cent, per annum from April 20, 1923, against Lee Settle and H. Fried, sureties.

By the Court: It is so ordered.