Brigham v. Davis

This is an appeal by petition in error and transcript to this court from the judgment of the trial court rendered on the 14th day of September, 1926. Separate petitions in error are filed by each Homer C. Brigham and the American Investment Company. The assignments of error contained in each of the petitions in error are based upon the action of the trial court occurring on the 14th day of September, 1926, and prior thereto. The appeal was lodged in this court on the 18th day of March, 1927, four days after the expiration of the time allowed by law for the perfecting of such appeal. Section 798, C. O. S. 1921, provides that all proceedings for reversing, vacating, or modifying judgments or final orders shall be commenced within six months from the rendition of such judgment or final order complained of.

"When the action of the lower court is sought to be reviewed by transcript, the proceedings in error must be commenced in this court within a year (now six months) from the date of judgment order sought to be reviewed. Richardson v. Beidleman et al., 33 Okla. 463, 126 P. 818.

No motion for new trial was filed by the American Investment Company. On September 20, 1926, plaintiff in error Homer C. Brigham filed in the trial court a motion for judgment notwithstanding the verdict of the jury, which motion was on the 22nd day of September, 1926, overruled, and on said day, September 22, 1926, said plaintiff in error, Homer C. Brigham, filed in said cause his motion for new trial, which motion was by the court on the same day overruled.

"A motion for new trial or a motion to vacate an order is not a part of the record brought up by transcript." Richardson v. Beidleman et al., 33 Okla. 463, 126 P. 818.

This court has often held that:

"Appeals by certified transcript present only such errors as appear on the face of the record, and such record consists of the petition, answer, reply, demurrers, process, orders and judgments, and in order to present errors involving motions, affidavits, evidence, instructions, and other preliminary proceedings, same must be brought into the record by bill of exceptions or case-made." Davis v. DeGeer, 91 Okla. 112,216 P. 157, and cases cited therein.

In the case of Folsom v. Billy, 78 Okla. 146, 189 P. 188, second paragraph of syllabus, this court held:

"A motion for new trial and the action of the court in overruling same being no part of the record proper, the assignment that the court erred in overruling the motion cannot be presented to this court by transcript of the record."

We therefore conclude that the filing of a motion for judgment notwithstanding the verdict and the motion for new trial did not extend the time in which to perfect the appeal, where the appeal is by transcript. The transcript filed in this court upon its face shows that the alleged error complained of in the petition in error occurred more than six months prior to the filing of the petition in error and transcript in this court. The appeal therefore was not lodged in this court within the time provided by law, and upon motion of the defendants in error this appeal is hereby dismissed.