UNITED STATES FID. & GUAR. CO. v. HAM

UNITED STATES FID. & GUAR. CO. v. HAM
1927 OK 64
254 P. 100
122 Okla. 261
Case Number: 18076
Decided: 03/15/1927
Supreme Court of Oklahoma

UNITED STATES FIDELITY & GUARANTY CO.
v.
HAM.

Syllabus

¶0 1. Appeal and Error--Time for Appeal Where Motion for New Trial Unnecessary. Where judgment is rendered by the trial court on the pleadings filed, a motion for new trial is unnecessary and unauthorized and does not operate to extend the time in which to perfect an appeal from such judgment.
2. Same--Statute.

"Section 798, Comp. Stat. 1921, provides all proceedings for reversing, vacating, or modifying judgment or final orders shall be commenced within six months from the rendition of the judgment or final order complained of, and the filing of a useless or unauthorized motion does not operate to prevent the running of time in which an appeal must be perfected."

D. B. Frear, for plaintiff in error.
S. F. Parks, for defendant in error.

PER CURIAM.

¶1 The trial court rendered judgment on pleadings May 28, 1926. The appeal from the action of the trial court in rendering said judgment was lodged in this court January 6, 1927, more than six months after the judgment appealed from was rendered. Section 798, C. O. S. 1921, provides that:

"All proceedings for reversing, vacating, or modifying judgments or final orders shall be commenced within six months from rendition of the judgment or final order complained of. * * *"

¶2 The six months' period, in which to commence proceedings in this court to review the judgment complained of, expired November 28, 1926. The plaintiff in error filed in the trial court its motion for new trial, and urge the time in which to file this appeal began to run from the time of the overruling of the motion for new trial. In the case of Schuber et al. v. McDuffee,

"Where judgment is rendered on the pleadings, motion for new trial is neither essential nor proper. * * *"

¶3 In Lee et al. v. Summers,

"The filing of a useless and unauthorized motion in a case will not operate to prevent the running of the time in which an appeal must be perfected."

¶4 In the case of McAleer v. Waddell-O'Brien Motor Co. et al.,