Lee v. Cox

PER CURIAM. This is an appeal from the judgment of the district court of Jackson county in an action wherein the plaintiff in error was defendant and the defendant in error was plaintiff. The cause was tried to a jury on the 2nd day of February, 1928, verdict rendered and judgment entered for the plaintiff; thereafter on the 8th day of February, 1928, the defendant filed in the. trial court his motion for new trial, which was overruled on the same day; from which judgment and order defendant appeals to this court. Plaintiff, in whose favor judgment was tendered, has filed in this court a motion to dismiss the appeal for the reason- the motion for new trial was not filed within the time required by law, and also for the reason no notice of appeal was given at the time of the. overruling of the motion for new trial or within 10 days thereafter. Under section 574, C. O. S. 1921, a motion for new trial must be made at the term the verdict, report, or decision is rendered, and except for cause of newly discovered evidence material for the parties applying which he could not, with reasonable diligence, have discovered and produced at the trial, or the impossibility of making ease-made, shall be within three day-s after the verdict or decision is rendered unless unavoidably prevented. It affirmatively appears in the record before this court that the motion for new trial was not filed within the three days provided in the foregoing section of the statute. The grounds of the motion for new trial filed in the. court below do not come within the exceptions of section 574, supra, and no 'excuse is shown why such motion was not filed within time. In the absence of any excuse as to why such motion was not filed, errors assigned occurring during the trial of the. cause in the court below will not be considered by this court. Hendon v. Consolidated School District No. 5, Pottawatomie County, 95 Okla. 259, 219 Pac. 291. In Roberts v. Simms, 111 Okla. 1, 237 Pac. 852, this court announced the following rule: “A motion for a new trial for errors of law occurring at the. trial, filed more than three days after the verdict was rendered, is a nullity unless it is made to appear that its filing within three days was unavoidably prevented.” We deem it unnecessary to notice the additional grounds of the motion to dismiss, • for the reason the proposition already considered requires dismissal of this appeal. The motion to dismiss is sustained, and the appeal is hereby dismissed. Note.—See “Appeal and Error,” 3 C. J. § 862, p. 966, n. 36. “New Trial,” 46 C. J. § 263, p. 295, n. 31.