Scott v. Oil Well Supply Co.

COCHRAN, J. The defendant in error has filed a motion to dismiss the appeal on the ground that the petition in error was not filed in this court within six months from the date the motion for new trial was overruled. The motion for new trial was overruled on May 13, 1921, and the petition in error was filed in this court on November 12, .1921, and was within the six-months period prescribed by statute. The period of six months prescribed in the statute means calendar months, and not a period of 30 days, or a lunar month. Bertwell v. Haines, 10 Okla. 469, 63 Pac. 702. The plaintiff in error contends that an excessive verdict was returned in this case on account of erroneous instructions given by the trial court. An examination of the testimony introduced discloses that the various items entering into the judgment rendered are separable and the testimony relative to each in uneontradicted.. It appears that, in addition to the items of credit which were allowed by the jury, the piaintiff in error was entitled to additional *100 credits amounting to $58.75. The judgment should he reduced to $210.31, with interest at the rate of six per cent, from the 16th day of August, '1915, and if the defendant in error will file a remittitur in this court of all in excess of the above amount within ten days, this judgment will stand affirmed; otherwise, it will be reversed. JOHNSON, C. J., and KENNAMER, HARRISON, and LX 1)1 OK, J.T., concur.