TENNISON v. ENGLE

TENNISON v. ENGLE
1909 OK 131
101 P. 1132
23 Okla. 679
Case Number: 579
Decided: 05/12/1909
Supreme Court of Oklahoma

TENNISON
v.
ENGLE.

Syllabus

¶0 APPEAL AND ERROR--Jurisdiction--Time of Taking Appeal. Where more than one year has intervened between the rendition of the final order sought to be reviewed and the filing of the petition in error in the Supreme Court, this court has no jurisdiction to review such final order.

Error from Pottawatomie County Court; E. D. Reasor, Judge.

Action by T. J. Engle against W. H. Tennison before a justice. From an order dismissing an appeal in the district court, defendant brings error. Dismissed.

C. B. Conner, for plaintiff in error.
T. G. Curtis and McLain Taylor, for defendant in error.

TURNER, J.

¶1 On November 8, 1907, T. J. Engle, defendant in error, filed his bill of particulars before W. S. Clinkscales, a justice of the peace in and for Pottawatomie county, at Tecumseh, praying judgment against W. H. Tennison, plaintiff in error, on account for $ 11.92, with interest and costs. On November 12, 1907, the case was tried and judgment rendered in favor of plaintiff as prayed. On November 22, 1907, Tennison filed an appeal bond, and on December 23, 1907, the transcript of the justice, together with the original papers in the case, were filed in the county court of that county, whereupon said Engle moved to dismiss the appeal on the ground that said bond was not entered into with approved security within 10 days, as required by St. Okla. 1893, § 4765. On December 27, 1907, Tennison filed a motion in the cause for an order returning the transcript to the justice for correction, so as to show the filing and approval of the bond within that time, the former of which said motions was sustained and the latter overruled, to which said Tennison duly excepted, and a final order of that date entered accordingly. On January 3, 1908, Tennison filed a motion to reinstate the appeal, which does not appear from the record to have been acted upon, and, to reverse said order on January 4, 1909, filed in this court his petition in error and case-made, which is assailed by Engle with a motion to dismiss the appeal, because not filed within one year from the rendition of said order.

¶2 We are of the opinion that the motion should be sustained. St. Okla. 1893, § 4452, provides:

"No proceeding for reversing, vacation or modifying judgments or final orders shall be commenced unless within one year after rendition of the judgment or making of the final order complained of, or in case the person entitled to such proceeding be an infant, a person of unsound mind, or imprisoned within one year as aforesaid, exclusive of the time of such disability.

¶3 The statute is mandatory. Keokuk Falls Improvement Company et al. v. Ed. J. Beale, 4 Okla. 712, 47 P. 481; Blanchard v. United States, 6 Okla. 587, 52 P. 736; Vandervoort v. Board of Commissioners, 8 Okla. 227, 57 P. 167; Vandervoort v. Board of Commissioners, 8 Okla. 227, 57 P. 167.

¶4 More than one year having intervened between December 27, 1907, the date of the final order appealed from, and January 4, 1909, the date of the filing of the petition in error and case-made in this court, we are without jurisdiction of this appeal, and the same is accordingly dismissed.

¶5 All the Justices concur.