Stewart v. Kendrick and Hedgepeth

Opinion of the court by Gillette, J.: Was the appeal from the probate court-to the district court taken in time? is the sole question presented to this court, and from the foregoing statement of the *514 facts it is-manifest that this must depend upon the significance of the motion for a new trial made in the probate court. Section 1566 of the Statutes of Oklahoma provides: “Appeals from the final judgment of said probate courts shall be allowed and taken to the supreme court of this territory in the same manner as from the district court and with like effect, when only questions of law are involved in the appeal. If the questions of fact are to be retried in the appellate court the appeals shall be taken to the district court of the county in manner and form as appeals are taken from the judgments of justices of the peace.” In this case an appeal was taken to the district court where the. questions of fact involved were to be retried, and for this purpose such .appeal could only be taken in the manner and form as appeals are taken from judgments of justices of the peace. The statute governing appeals from justices of the peace provides as follows: “The party appealing shall within ten days from the rendition of judgment, enter into an undertaking to the adverse party with at least one good and sufficient surety to be approved by such justice in a sum not less than $50 in any case, nor less than double the amount of'the judgment and costs, conditioned: First, that the appellant will prosecute the appeal to effect and without unnecessary delay; and second, that if judgment be rendered against him on the appeal, he will satisfy such judgment and costs, etc.” This statute was attempted to be complied with in this case by giving a sufficient bond for the purpose of such appeal, October 2, 1901, almost- three months after the date of the *515 rendition of the judgment complained of, and was therefore not withjn ten days, as required by the above quoted statute. It is contended, however, that the provisions of said statute limiting the right of appeal to a period of ten days from the date of the rendition of judgment complained of did not commence to run until the 24th day of September, 1901, because of the pendency,in the probate court of a motion for a new trial, determined on that day. We cannot agree with this contention. The motion for a new trial had no office to perform in the matter of this appeal. It was a proper and in most instances a necessary step to take where an appeal is desired from the probate court to the supreme court, as such a motion raises and presents questions of law to be determined by the supreme court, but it adds nothing whatever to the record, and presents a determination of no right necessary to be determined in a matter of appeal for trial de novo in the district court. This being true, the time limited for appeals to the district court commenced to run on the date of the rendition of the judgment complained of, to-wit: the 12th day of July, 1901, and expired on the 22nd day of •July, following. The motion for a new trial is wholly superfluous, and protects no right of the appellant where the appeal is taken io the district court. It follows, therefore, that the order of the district court of Garfield county dismissing the appeal must be affirmed, with costs. Beauchamp, J., who tried the case in the probate court, not sitting; all the other Justices concurring.