Cannon v. Martin

PER CURIAM. The appeal was filed herein May 16, 1935, and the journal entry of judgment shows that the same was entered on the 15th day of November, 1934. A motion to dismiss has been filed which, among other tilings, alleges that the appeal was not filed in this court within the six months as provided by law. Since it is evident that the appeal must lie dismissed upon this ground, the other grounds will not be considered. After the rendition of judgment on the aforesaid date, a motion for new trial was filed. There is no order of the court shown overruling the same. The defendant in error states that it is not necessary to have an order overruling the motion for new trial in this ease for the reason that the same was tried, upon an agreed statement of facts, and cites a number of cases supporting that rule. Either the case requires a motion for,, new trial or it does not. .If. it requires a motion for new trial under thé rule laid down in the ease of Lillard v. Meisberger, 113 Okla. 228, 240 P. 1067, the order made overruling the same must be incorporated in the case-made and presented to this court or the same will not lie considered. If it was not necessary to file motion for new trial, the motion and the ruling thereon are a nullity and would not lie considered by this court and serve no purpose to extend the time within which a case-made could be filed in this court. Richardson v. Beidleman, 33 Okla. 463, 126 P. 818; Brigham v. Davis, 126 Okla. 90, 258 P. 740. This court had held many times that an appeal must be filed within six' months after the entry of the order appealed from. Johnson v. Carey-Lombard Young & Co., 163 Okla. 197 23 P. (2d) 188; Showalter v. Hampton, 122 Okla. 192, 253 P. 105; Starr v. Wood, 62 Okla. 242, 19 P. (2d) 561. The appeal is therefore dismissed. McNEILL, C. J., OSBORN, V. O. J., and RILEY, BUSiBiY, WELCH, PHELPS, CORN, and GIBSON, J.T., concur. BAYLESS, J., absent.