FINNELL v. FINNELL

FINNELL v. FINNELL
1924 OK 1051
230 P. 912
113 Okla. 269
Case Number: 15214
Decided: 11/25/1924
Supreme Court of Oklahoma

FINNELL
v.
FINNELL.

Syllabus

¶0 Divorce--Time for Appeal--"Judgment" and "Decree"' as Referring to Order Overruling Necessary Motion for New Trial.
Where a party desiring to appeal from a judgment granting a divorce prosecutes said appeal by case-made and upon errors such as require the evidence to be brought before this court, it is necessary that such party appealing file a motion for new trial, and his appeal is thereupon based upon the error of the court in overruling such motion. When such is the procedure followed, the "judgment" within ten days of the rendition of which notice of appeal must be given under section 510, C. O. S. 1921, and the "decree" within four months from the date of which such appeal must be perfected, each refers to the order and judgment of the court overruling the party's motion for new trial.

Chastain & Harris, for plaintiff in error.
Everest, Vaught & Brewer, for defendant in error.

PER CURIAM.

¶1 By the terms of section 510, C. O. S. 1921, an appeal may be taken from a decree of divorce "at any time within four months from the date of the decree appealed from and not thereafter."' The appeal in this case was taken by case-made and presents alleged errors based upon the evidence. It was necessary for the party appealing to file his motion for new trial in the lower court and such appeal could be taken only upon the overruling of this motion by the court. The terms "judgment"' and "decree" are usually used in our statutes as synonymous, without distinction between their application to actions at law and suits in equity. The appeal in this case is taken from the "decree" of the court overruling the motion for new trial, as that is the final order which determined the rights of the parties in that court. It is such final order as is contemplated by the statute in the provision that the appeal may be taken "within four months from the date of the decree appealed from." The appeal in this case was perfected in that time. In the case of Linkugel v. Linkugel, 74 Okla. 298, 183 P. 55, the question was not before the court as to whether the decree referred to in the statute was the order of the court granting the divorce or the one by which a motion for new trial was overruled. The time for appeal had expired in that case under either theory, and it was not necessary for this court in that case to make a distinction on this point. The same is true in the case of Vogt v. Vogt, 91 Okla. 272, 217 P. 192, and in the case of Milam v. Milam, 76 Okla. 62, 184 P. 442. In the case of Reynolds v. Reynolds, 94 Okla. 114, 221 P. 109, the question now before us was not considered. It is true that the language is broad enough to cover the matter which we are considering, but the rule there announced was intended to refer to a very different question. The court there held that where, in a divorce case, the court at the conclusion of the trial announced its judgment and made its findings, and the same were not reduced to the form for a journal entry and signed and filed until a later date, the date of the judgment was the date on which it was announced and the findings made, and not the date when it was reduced to writing. The court had no occasion there to pass upon the question of whether the four months' period for appeal began to run when the judgment was announced or whether the statute was not set into operation until the motion for new trial was overruled. Language which might be otherwise interpreted is dicta in that case.