MILLER v. MENTZER

MILLER v. MENTZER
1940 OK 46
98 P.2d 913
186 Okla. 496
Case Number: 29283
Decided: 01/30/1940
Supreme Court of Oklahoma

MILLER
v.
MENTZER

Syllabus

¶0 1. APPEAL AND ERROR--Dismissal where petition in error not filed within six months period.
Where the petition in error is not filed in this court until after the expiration of six months from the date of the final judgment complained of, this court has no jurisdiction over the subject matter and the appeal will be dismissed.
2. SAME--Time for appeal not extended by unnecessary motion for new trial.
The filing and determination of an unnecessary motion for new trial serves no purpose to extend the time in which an appeal can be filed in the Supreme Court.

Appeal from District Court, Garfield County; J. W. Bird, Judge.

Action upon a promissory note by Emma M. Mentzer against May Wheeler Miller. Upon motion to vacate the judgment, defendant prosecutes an appeal from an order dismissing said proceedings. Dismissed.

Winfield Scott, of Enid, for plaintiff in error.
Wilson & Wilson, of Enid, for defendant in error.

PER CURIAM.

¶1 This is an appeal from an order sustaining a motion to dismiss a proceeding on a motion to vacate a judgment.

¶2 A judgment was obtained on May 31, 1933. On December 11, 1937, the judgment debtor filed a motion to vacate the judgment under subdivision 3 of section 556, O. S. 1931, 12 Okla. St. Ann. §1031.

¶3 On November 21, 1938, the trial court sustained a motion to dismiss the proceeding. The petition in error with casemade attached was not filed in this court until June 13, 1939. A motion to dismiss has been filed alleging that the case should be dismissed for the reason that the appeal was not filed within six months from the date of the order appealed from. The motion to dismiss must be sustained. Powell v. Nichols, 26 Okla. 734, 110 P. 762; Gilmore v. Smith, 93 Okla. 4, 219 P. 92; Grimes v. Ward, 179 Okla. 5, 64 P.2d 894.

¶4 In the response to the motion to dismiss, the plaintiff in error contends that she had six months from the date of the order overruling the motion for new trial purported to have been entered on February 9, 1939. Under the doctrine announced in Powell v. Nichols, supra, and other authorities, a motion for new trial was unnecessary and the filing and determination of a motion for new trial served no purpose to extend the time to prosecute the appeal. Appeal dismissed.