WHITFIELD v. PIPPIN et al.

WHITFIELD v. PIPPIN et al.
1931 OK 358
1 P.2d 669
150 Okla. 298
Case Number: 22176
Decided: 06/16/1931
Supreme Court of Oklahoma

WHITFIELD
v.
PIPPIN et al.

.

Syllabus

¶0 Appeal and Error--Dismissal--Appeal not Commenced Within Six Months.
Proceedings on appeal to this court must be commenced within six months from the rendition of final judgment or order complained of, and when not so commenced, this court is without jurisdiction to review the order or judgment appealed from, and the appeal will be dismissed.

Appeal from District Court, Okmulgee County; James M. Hays, Judge.

Action by A. J. Whitfield against C. C. Pippin et al. Judgment for defendants, and plaintiff appeals. Dismissed

Louis W. Pratt and James Harrington, for plaintiff in error.
Hummer & Foster and Stanard & Carey, for defendants in error.

PER CURIAM.

¶1 This is an appeal from a judgment in favor of the defendants rendered in the district court of Okmulgee county on the 25th day of April, 1930, in an action wherein the plaintiff in error was plaintiff.

¶2 On April 28, 1930, the plaintiff filed in said cause his motion for new trial, which motion was, on the 24th day of May, 1930, overruled. No notice of appeal was given at the time of the overruling of the motion for new trial, nor was such notice given within 10 days thereafter. No order was made extending the time in which to make and serve case-made at the time of the overruling of the motion for new trial, nor was such an order made within the 15 days thereafter. On May 26, 1930, the plaintiff filed in said cause his motion to vacate and set aside the order of the court overruling his motion for new trial, and which motion was, on the 23rd day of August, 1930, denied. Thereafter, on the 3rd day of October, 1930, the plaintiff filed in said cause his motion to vacate the order of August 23, 1930. On the 10th day of October, 1930, the motion filed on October 3rd to vacate the order on August 23rd, was sustained, and the order bearing date of August 23, 1930, was vacated. The motion filed on May 26, 1930, was reinstated, and after being reinstated was on the same day overruled. On said day, October 10, 1930, notice of appeal was given in open court, and 60 days' time given in which to make and serve case-made. Thereafter, on January 6, 1931, an order was made extending the time in which to make and serve case-made for a period of 30 days from the 9th day of January, 1931. The case-made was served on the 19th day of January, 1931, settled and signed by the trial court on the 12th day of February, 1931, and attached to the petition in error and filed in this court March 19, 1931. The defendants in error have filed in this cause their motion to dismiss the appeal upon the following grounds: That the petition in error was not filed within the time provided by law; that no notice of appeal was given within 10 days from the time of the order overruling the motion for new trial; that the case-made was not served within the time authorized by law; and that no assignment of error is incorporated in the petition in error challenging the ruling of the trial court within six months preceding the time of filing of the petition in error in this court.

¶3 The defendant in error has responded to the motion to dismiss, and asserts that the language of the order made October 10, 1930, "is in plain and simple language, 'the motion for new trial overruled as of this date.'" We cannot so read the order referred to. That part of the order made on October 10, 1930, affecting the question presented by this response is as follows:

"Motion to vacate order of August 23, 1930, sustained and motion to vacate order overruling motion for new trial is hereby reinstated. Defendants excepted. Motion to vacate order overruling motion for new trial heard and same is overruled as of this date."