TIMBERLAKE v. CASE

TIMBERLAKE v. CASE
1927 OK 88
254 P. 723
122 Okla. 275
Case Number: 17635
Decided: 03/29/1927
Supreme Court of Oklahoma

TIMBERLAKE
v.
CASE et al.

Syllabus

¶0 Appeal and Error--Dismissal--Premature Appeal with Motion for New Trial Undisposed of.
Proceedings in error brought in this court before the application for new trial on written grounds filed is passed upon by the trial court are prematurely brought, and there is nothing properly before this court for review, and the appeal should be dismissed.

Error from District Court, Pontotoc County; Asa E. Walden, Assigned Judge.

Action between Beulah Timberlake, for herself, and as administratrix of the state of H. B. Timberlake, deceased. From the judgment, the former brings error. Dismissed.

W. F. Schulte, for plaintiff in error.
Wimbish & Duncan, for defendants in error.

PER CURIAM.

¶1 Judgment was rendered in the trial court on the 19th day of January, 1926, and thereafter, on the 22nd day of January, 1926, an application for new trial on written grounds was filed in said cause. The appeal was lodged in this court July 19, 1926. The defendants in error have filed their motion to dismiss for the reason that the motion for new trial has not been acted upon by the trial court. An examination of the record in this case does not show that the motion for new trial has ever been passed upon by the trial court, and there is nothing properly before this court for review.

¶2 In the case of McCommas et al. v. Security National Bank, No. 17463, 122 Okla. 52, 250 P. 802, this court laid down the rule that: