Miller v. Mentzer

PER CURIAM. This is an appeal from an order sustaining a motion to dismiss a proceeding on a motion to vacate a judgment. A judgment was obtained on May 31, 1933. On December 11, 1937, the judgment debtor filed a motion to vacate the judgment under subdivision 3 of section 556, O. S. 1931, 12 Okla. St. Ann. § 1031. On November 21, 1938, the trial court sustained a motion to dismiss the proceeding. The petition in error with case-made attached was not filed in this court until June 13, 1939. A motion to dismiss has been filed alleging that the case should be dismissed for the reason that the appeal was not filed within six months from the date of the order appealed from. The motion to dismiss must be sustained. Powell v. Nichols, 26 Okla. 734, 110 P. 762; Gilmore v. Smith, 93 Okla. 4, 219 P. 92; Grimes v. Ward, 179 Okla. 5, 64 P. 2d 894. In the response to the motion to dismiss, the plaintiff in error contends that she had six months from the date of the order overruling the motion for new trial purported to have been entered on February 9, 1939. Under the doctrine announced in Powell v. Nichols, supra, and other authorities, a motion for new trial was unnecessary and the filing and determination of a motion for new trial served no purpose to extend the time to prosecute the appeal. Appeal dismissed. RILEY, CORN, GIBSON, HURST, and DANNER, JJ., concur.