Ft. Smith W. R. Co. v. Walker

*160 DUNN, 0. J. This case presents error from the county court of Pittsburg county, in an action brought by defendant in error as plaintiff against plaintiff in error as defendant for damages. There was trial to a jury and a verdict for plaintiff, on which judgment was rendered, and defendant has prosecuted the case to this court on petition in error and case-made, relying on errors which are alleged to have occurred on the trial. Counsel for plaintiff have filed a motion to dismiss the petition in error for the reason that the motion for new trial was not filed within three days after the verdict was rendered, as required by section 5827, Comp. Laws, 1909. It appears from the record that the verdict was rendered on the 5th day of June, 1909, and the motion for a new trial was filed on the 9th day of June, 1909, or four days thereafter. No plea of newly discovered evidence is made, nor is there any showing that defendant was unavoidably prevented from filing the motion earlier. The statute above referred to provides: “The application for a new trial must be made at the term the verdict, report, or decision is rendered, and, except for the cause of newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented.” Under the authority of the case of Board of County Com'rs of Pottawatomie County v. Grace, 23 Okla. 35, 99 Pac. 653, and Joiner v. Goldsmith 25 Okla. 840, 107 Pac. 733, the motion of counsel for defendant must be sustained and the petition in error is accordingly dismissed. All the Justices concur.