CANNON v. MARTS

CANNON v. MARTS
1935 OK 887
49 P.2d 684
174 Okla. 22
Case Number: 26359
Decided: 10/01/1935
Supreme Court of Oklahoma

CANNON et al.
v.
MARTS.

Syllabus

¶0 APPEAL AND ERROR--Appeal Dismissed Where not Perfected Within Statutory Time.
A proceeding in error which is not commenced within six months from the date of the order from which the appeal is taken will be dismissed.

Appeal from District Court, McIntosh County; Harve L. Melton, Judge.

Action by Leslie Martin against Irving Cannon et al. upon contract. Judgment for plaintiff, and defendant appeals. Dismissed.

Roy White, Co. Atty., and J. G. Harley, for plaintiffs in error.
W. R. Banker, for defendant in error.

PER CURIAM.

¶1 The appeal was filed herein May 16, 1935, and the journal entry of judgment shows that the same was entered on the 15th day of November, 1934. A motion to dismiss has been filed which, among other things, alleges that the appeal was not filed in this court within the six months as provided by law.

¶2 Since it is evident that the appeal must be dismissed upon this ground, the other grounds will not be considered. After the rendition of judgment on the aforesaid date, a motion for new trial was filed. There is no order of the court shown overruling the same. The defendant in error states that it is not necessary to have an order overruling the motion for new trial in this case for the reason that the same was tried upon an agreed statement of facts, and cites a number of cases supporting that rule. Either the case requires a motion for new trial or it does not. If it requires a motion for new trial under the rule laid down in the case of Lillard v. Meisberger, 113 Okla. 228, 240 P. 1067, the order made overruling the same must be incorporated in the case-made and presented to this court or the same will not be considered. If it was not necessary to file motion for new trial, the motion and the ruling thereon are a nullity and would not he considered by this court and serve no purpose to extend the time within which a case-made could be filed in this court. Richardson v. Beidleman, 33 Okla. 463, 126 P. 818; Brigham v. Davis, 126 Okla. 90, 258 P. 740.

¶3 This court had held many times that an appeal must be filed within six months after the entry of the order appealed from. Johnson v. Carey-Lombard Young & Co., 163 Okla. 197, 23 P.2d 188; Showalter v. Hampton, 122 Okla. 192, 253 P. 105; Starr v. Woods, 162 Okla. 242, 19 P.2d 561. The appeal is therefore dismissed.