Snider v. Ostrander

Mr. Justice Wi-iite delivered the opinion of the court. The decree involved herein was entered in the trial court on July 15, 1915, and ten days allowed defendants therein, who are plaintiffs in error here, in which to file a motion for a new trial. No motion was filed within the' time designated, but on August 5th thereafter, without [100] permission of the court first had and obtained, a motion to modify the decree was filed and subsequently, on September 25th, overruled, and, over the objection of plaintiff, the defendants therein were given an additional ten days in which to file, their motion for a new trial. No action was taken in the premises, however, until October 11, 1915, when, without permission of the court, a motion for a new trial was filed. This being overruled, the cause was lodged here and writ of error issued August 2, 1916. The defendant in error has interposed a motion to dismiss the writ of error, and contends that the decree or judgment of the trial court is not subject to review in this court, because no motion for a new trial was filed within the time and manner prescribed by the Code of Civil Procedure, or within the time allowed by the trial court for that purpose, and that the decree is not subject to review, because the writ of error was not sued out within one year from the rendition thereof. The filing, of a motion for a new trial, within the time and manner prescribed by the Code of Civil Procedure, was a condition precedent to have the judgment in question reviewed by this court. Sec. 237, Code of Civil Procedure, 1908, (148 Pac. XVIII). No. 19, Rules of Practice and Procedure in Civil Causes, adopted by this-court and effective September 14, 1914. Apart from this, the plaintiffs in error failed to institute proceedings in this court to have their cause reviewed on error until after the expiration of the time provided and limited for that purpose. No. 14, Rules of Practice and Procedure in Civil Causes. The writ of error is, therefore, dismissed. Dismissed. Decision en bane. Ci-iiee Justice Gabbert and Mr. Justice Bailey not participating.