Whitfield v. Pippin

This is an appeal from a judgment in favor of the defendants rendered in the district court of Okmulgee county on the 25th day of April, 1930, in an action wherein the plaintiff in error was plaintiff.

On April 28, 1930, the plaintiff filed in said cause his motion for new trial, which motion was, on the 24th day of May, 1930, overruled. No notice of appeal was given at the time of the overruling of the motion for new trial, nor was such notice given within 10 days thereafter. No order was made extending the time in which to make and serve case-made at the time of the over-ruling of the motion for new trial, nor was such an order made within the 15 days thereafter. On May 26, 1930, the plaintiff filed in said cause his motion to vacate and set aside the order of the court overruling his motion for new trial, and which motion was, on the 23rd day of August, 1930, denied. Thereafter, on the 3rd day of October, 1930, the plaintiff filed in said cause his motion to vacate the order of August 23, 1930. On the 10th day of October, 1930, the motion filed on October 3rd to vacate the order or August 23rd, was sustained, and the order bearing date of August 23, 1930, was vacated. The motion filed on May 26, 1930, was reinstated, and after being reinstated was on the same day overruled. On said day, October 10, 1930, notice of appeal was given in open court, and 60 days' time given in which to make and serve case-made. Thereafter, on January 6, 1931, an order was made extending the time in which to make and serve case-made for a period of 30 days from the 9th day of January, 1931. The case-made was served on the 19th day of January, 1931, settled and signed by the trial court on the 12th day of February, 1931, and attached to the petition in error and filed in this court March 19, 1931. The defendants in error have filed in this cause their motion to dismiss the appeal upon the following grounds: That the petition in error was not filed within the time provided by law; that no notice of appeal was given within 10 days from the time of the order overruling the motion for new trial; that the case-made was not served within the time authorized by law; and that no assignment of error is incorporated in the petition in error challenging the ruling of the trial court within six months preceding the time of filing of the petition in error in this court.

The defendant in error has responded to the motion to dismiss, and asserts that the language of the order made October 10, 1930, "is in plain and simple language, 'the motion for new trial overruled as of this date.' " We cannot so read the order referred to. That part of the order made on October 10, 1930, affecting the question presented by this response is as follows:

"Motion to vacate order of August 23, 1930, sustained and motion to vacate order overruling motion for new trial is hereby reinstated. Defendants excepted. Motion to vacate order overruling motion for new trial heard and same is overruled as of this date."

In plain and simple language, this order overrules the motion to vacate the order overruling the motion for new trial, thereby leaving the order overruling the motion for new trial made on the 24th day of May, 1930, undisturbed.

The six months' period from the overruling of the motion for new trial expired on November 24, 1930. Where the petition in error is not filed in this court within the time allowed by law for the filing of an appeal, this court is without jurisdiction to review the judgment or order appealed from. Lambert v. Monarch Cement Co., 141 Okla. 31, 285 P. 844; Barfield Petroleum Co. v. Pickering Lumber Co., 137 Okla. 151,278 P. 391. The assignments of error in the petition in error are based upon the ruling of the trial court during the trial of the cause, and no assignment of error in the petition in error is predicated upon the action of the trial court in denying the motion to vacate the order overruling the motion for new trial. It is unnecessary to discuss any other ground of dismissal set forth in the motion filed by the defendant in error, for the reason the proceedings for review not having been filed in this court within six months from the date of the order overruling the motion for new trial, this court is without jurisdiction to review the judgment appealed from, and the appeal is dismissed.