Burton v. De Bolt

Opinion by RITTENHOUSE, C. This action was begun in justice court on Dec. 9, 1911, and judgment rendered in favor of defendant in error on Feb: 20,1912, from which judgment plaintiff in error appealed to the county court of Oklahoma county. A motion to dismiss such appeal was filed by defendant in error, which was sustained on May 27, 1912. On May 29, 1912, plaintiff in error filed a motion to vacate the order dismissing the appeal, and on June 10, 1912, this motion was overruled. Plaintiff in error brings error to this court, complaining of the action of the county court in dismissing his appeal* having filed his petition in error and case-made herein on December 9, 1912. The order made on May 27, 1912, was a final order and disposed of the case, and no motion for new trial was necessary. Bond v. Cook, 28 Okla. 446, 114 Pac. 723; Powell v. Nichols, 26 Okla. 734, 110 Pac. 762, 29 L. R. A. (N. S.) 886; Williamson v. Adams, 31 Okla. 503, 122 Pac. 499; M. O. & G. Ry. Co. v. McClellan, 35 Okla. 609, 130 Pac. 916. Where a motion for a new trial -is unnecessary to present for review to this court an order or judgment, the filing of such motion and decision thereon by the court are ineffectual for the purpose of extending the time within which to perfect an appeal.' The time begins to run from the rendition of the judgment or order, and not from the order overruling the motion for new trial. Manes v. Hoss, 28 Okla. 489, 114 Pac. 698; Holland v. Beaver, 29 Okla. 115, 116 Pac. 76 , Ann. Cas. 1913A, 814; Reed v. Woolly, 31 Okla. 783, 123 Pac. 1121; Healy *354 v. Davis, 32 Okla. 296, 122 Pac. 157; Boulanger v. Midland Valley Merc. Co., 36 Okla. 120, 128 Pac. 113; Cowart v. Parker-Washington Co., 40 Okla. 56, 136 Pac. 153; St. L. & S. F. R. Co. v. Nelson, 40 Okla. 143, 136 Pac. 590; Lyons v. Osborn, 45 Kan. 650, 26 Pac. 31. The purported case-made was filed herein on December 9, 1912, and was not served or filed within six months from May 27,. 1912, and this court, therefore, lacks jurisdiction to entertain said pretended appeal. Healy v. Davis, supra. By the Court: It is so ordered.