KOURY v. VOGEL

KOURY v. VOGEL
1942 OK 352
130 P.2d 93
191 Okla. 374
Case Number: 30730
Decided: 10/20/1942
Supreme Court of Oklahoma

KOURY
v.
VOGEL et al.

Syllabus

¶0 APPEAL AND ERROR--Time for appeal not extended by filing motion for new trial where judgment rendered on pleadings and opening statement.
Where judgment is rendered upon the pleadings and opening statement of counsel, the filing and determination of a motion for new trial serves no purpose to extend the time in which the appeal may be filed past the six months from the rendition of the judgment upon said pleadings and opening statement.

Appeal from District Court, Creek County; C. O. Beaver, Judge.

Action by Sam Vogel and Sam Jones against E. J. Koury on promissory note and foreclosure of a mortgage. From a judgment for the plaintiffs, defendant appeals. Dismissed.

Edgerton & Vickers, of Sapulpa, for plaintiff in error.
W. V. Pryor, of Sapulpa, for defendants in error.

PER CURIAM.

¶1 At the conclusion of the opening statement of counsel for the defendant plaintiff moved for, and the court granted, a judgment upon the pleadings and opening statement of counsel. The order and judgment from which the appeal is taken was entered under date of June 3, 1941. Thereafter plaintiff in error filed a motion for new trial, which was determined by the trial court on June 16, 1941. Apparently it is the attempt of the plaintiff in error to appeal from the order overruling the motion for new trial. If it is his intention to appeal from the judgment, the cause was not filed within six months from the date of the order entered thereon by the trial court. The appeal must be dismissed. Burdett v. Burdett, 26 Okla. 416,109 P. 922; Minnetonka Oil Co. v. Cleveland Vitrified Brick Co., 48 Okla. 156, 149 P. 1136; Dickson v. Minneapolis Threshing Mach. Co., 174 Okla. 335, 50 P.2d 335. In Dickson v. Minneapolis Threshing Mach. Co., supra, it is stated:

"Where judgment is rendered upon the pleadings and opening statement of counsel, the filing and determination of a motion for new trial serves no purpose to extend the time in which the appeal may be filed past the six months from the rendition of the judgment upon said pleadings and opening statement."

¶2 The appeal is dismissed.

¶3 WELCH, C. J., and OSBORN, BAYLESS, GIBSON, HURST, and DAVISON, JJ., concur. CORN, V. C. J., and RILEY and ARNOLD, JJ., absent.