Dickerson v. Moore , 76 Okla. 249 ( 1919 )

On September 17, 1919, the defendant in error filed a motion to dismiss the appeal for the reason that the matters complained of can only be reviewed upon a petition in error with case-made attached, and not upon a petition in error with a transcript of the record attached as is done in this case; and furthermore, for the reason that the petition in error was not filed in this court within the time provided by law.

On September 6, notice of the motion to dismiss this appeal was served on the attorney for the plaintiff in error with brief in support of same. The time to reply to motion to dismiss as fixed by the rules of this court has expired, and no reply to the motion has been filed.

There are several assignments of error, but the only one that can be considered by this court upon a transcript of the record is the error assigned that the court erred in overruling a demurrer to the petition. The record, however, in the case discloses, the fact that on March 6, 1918, a demurrer alleging that the allegations of the petition failed to state facts sufficient to constitute a cause of action was filed. This does not appear to have been ever acted upon by the court. On March 11, 1918, and while the demurrer was on file and not acted upon, the defendant filed an answer and the cause went to trial and judgment without the court ever having acted on the demurrer.

We do not believe that the defendant, Dickerson, waived any rights raised by the demurrer that the allegations of the petition do not state a cause of action by not having the court pass on same prior to judgment. Section 4742, Rev. Laws 1910; Antene v. Jensen et al., 47 Okla. 352, 148 P. 727.

We have carefully examined the petition, and it appears that a cause of action is therein stated, and we so find; further, that the appeal upon the only assignment of error that can be considered by this court, is without merit.

The defendant in error as a second reason why the appeal should be dismissed alleges that the petition in error was not filed in this court within six months from rendition of judgment as by law required. The record shows that the motion for new trial was overruled and judgment entered on the 5th day of December, 1918, and that the petition in error was filed in this court on September 4, 1919. Chapter 18 of the Session Laws of 1910-11, provides "that all proceedings for reversal, vacation or modifying judgments or final orders shall be commenced within six months from the rendition of the judgment or final order complained of." There being no legal reasons given why the petition in error was not filed in the time provided by law, we find that the motion to dismiss the appeal should also be sustained for that reason. Appeal dismissed.

All the Justices concur.