WIMBISH v. DIXON

WIMBISH v. DIXON
1943 OK 331
143 P.2d 616
193 Okla. 550
Case Number: 31376
Decided: 10/12/1943
Supreme Court of Oklahoma

WIMBISH, Gdn.,
v.
DIXON, Adm'r.

Syllabus

¶0 APPEAL AND ERROR--Time for appeal not extended by filing unnecessary motion for new trial of question of fact involved in settling guardian's account.
The filing and determination of a motion for a new trial of a contested question of fact, not arising upon the pleadings, but upon an account filed in a guardianship proceeding, and objection thereto, is unnecessary to authorize this court to review the order made upon such hearing, and the filing of such unnecessary motion for new trial in such a proceeding, does not extend the time in which to file an appeal.

Appeal from District Court, Pontotoc County; Tal Crawford, Judge.

In the matter of the estate of Sarah Cagle, an incompetent; Robert J. Wimbish, guardian, and U.S. Dixon, administrator. Guardian's account settled in district court on appeal from county court, and from order overruling his motion for new trial he appeals. Dismissed.

Robert Wimbish, of Ada, for plaintiff in error.
Hobert G. Orton, of Ada, for defendant in error.

PER CURIAM.

¶1 On December 18, 1940, Robert J. Wimbish, as guardian of Sarah Cagle, an incompetent, filed in the county court of Pontotoc county, Okla., his final report as such guardian and the county court made the order settling the guardian's account, after which on April 14, 1942, the said Robert J. Wimbish filed in said proceeding a motion asking to set aside and hold for naught the order formerly made and sought approval of the final report and the allowance of guardian's fees and attorney fees. All of this proceeding was concluded in the county court on the 5th day of May, 1942, and on the 12th day of May, 1942, the guardian filed his notice of appeal and the appeal was lodged in the district court of Pontotoc county.

¶2 On the 22nd day of July, 1942, the district court of Pontotoc county rendered judgment in said county settling the guardian's account on the same basis and figures as in the county court order of September 26, 1941, and therein allowed said guardian fees and attorney fees.

¶3 Robert J. Wimbish as guardian did not appeal from the order entered by the district court on the 22nd day of July, 1942, but filed a motion for new trial on July 23, 1942. This motion was passed on by the district court and overruled on October 7, 1942, and this appeal is prosecuted from the order overruling the motion for new trial.

¶4 The petition in error was filed on April 2, 1943, more than eight months after the judgment of the trial court entered July 22, 1942. A motion to dismiss has been filed for the reason that the filing and determination of motion for new trial is unnecessary. The appeal must be dismissed. Butler v. Archard, 130 Okla. 241, 266 P. 1106; Lewis v. McQueen, 188 Okla. 157, 107 P.2d 192. See Butler v. Archard, supra.

¶5 The appeal is dismissed.

¶6 CORN, C. J., GIBSON, V. C. J., and RILEY, BAYLESS, HURST, and ARNOLD, JJ., concur. OSBORN and WELCH, JJ., absent. DAVISON, J., not participating.