Grier v. Durham

KANE, C. J. This cause comes on to be heard upon a motion to dismiss filed by the defendant in error, upon, among others, the following ground: “The judgment being by default, and thereby the facts being admitted, there was nothing for the court below to review, and no issue of facts which the court re-examined, or a new trial thereof, and the term of the court had closed on May 3, 19.13, and, the said motion not being made within the three days from *528 the rendition of the said judgment, or at any time during the said term of the said court at which it was rendered, the court was without jurisdiction to hear said motions even had the minor been made a party thereto, and the only remedy was an appeal from said judgment to this court. The motion and grounds for a new trial filed by the plaintiff in error on May 19, 1913, being unnecessary, did not operate to stay the running of the statute of limitation from the date of said judgment, and the petition in error having been filed in this court on January 21, 1914, and the judgment having been rendered on March 1, 1913, was not within six months from the date of the judgment, and the right of appeal was barred, under the laws of the state of Oklahoma, which provide that such appeal shall be prosecuted within six months.” This contention must be sustained. Healy v. Davis, 32 Okla. 296, 122 Pac. 157; Manes v. Hoss, 28 Okla. 489, 114 Pac. 698; Burdett et al. v. Burdett et al., 26 Okla. 416, 109 Pac. 922, 35 L. R. A. (N. S.) 964; Springfield F. & M. Co. v. Gish, Brook & Co., 23 Okla. 824, 102 Pac. 708; Cowart v. Parker-Washington Co., 40 Okla. 56, 136 Pac. 153. The motion to dismiss is therefore sustained. All the Justices concur.