FORMAN v. PAYNE

FORMAN v. PAYNE
1972 OK 21
494 P.2d 1245
Case Number: 43817
Decided: 02/08/1972
Supreme Court of Oklahoma

EMIL FORMAN, PLAINTIFF IN ERROR,
v.
W.C. PAYNE ET AL., DEFENDANTS IN ERROR.

Appeal from the Trial Court.

John B. Ogden, Oklahoma City, Okl., for plaintiff in error.

Paul Brown, Oklahoma City, Okl., for defendants in error.

ORDER OF REMAND

BERRY, Chief Justice.

¶1 Judgment on the pleadings in favor of defendant was entered in the trial court January 24, 1969. Plaintiff timely filed a motion for new trial on February 3, 1969, which motion was thereafter amended by plaintiff to elaborate the ground alleged. The motion and the amended motion came regularly on for hearing and both were ordered stricken by the trial judge, on the motion of defendant. Plaintiff appeals.

¶2 The appellate rules governing this appeal are the rules adopted January 8, 1969, effective January 13, 1969, 12 O.S. 1969, Supp. foll. § 990 , p. 306. Rule 3(a) provides where a motion for new trial is filed, appeal time does not begin to run until disposition of the motion is effected. As used in appellate rules disposition contemplates granting or denying the relief sought in the motion, as distinguished from striking the motion from the pleadings in the case.

¶3 Failure by the trial court to rule on the motion for new trial which was timely filed, and ordering the motion stricken is error.

¶4 Plaintiff has not asserted error in the final judgment and that judgment is not subject to review here. The cause is remanded with direction to vacate the order striking the motion for new trial as amended, to reinstate the motion as amended, and to judicially rule upon the motion by granting or denying the relief prayed therein.