STATE ex rel. STATE HWY. COM. v. ASENDORF

STATE ex rel. STATE HWY. COM. v. ASENDORF
1950 OK 185
220 P.2d 272
203 Okla. 263
Case Number: 33742
Decided: 07/05/1950
Supreme Court of Oklahoma

Syllabus

¶0 1. APPEAL AND ERROR - Question of jurisdiction primary and fundamental.
The question of jurisdiction is primary and fundamental in every case, and cannot be waived by the parties or overlooked by the court. It is the duty of the court to examine into its jurisdiction, whether raised by any party or not, and sua sponte to determine its own jurisdiction.
2. COURTS - Dismissal of appeal where petition in error not filed within six months from date of judgment or order.
Where the petition in error is not filed in the Supreme Court within six months from the rendition of the judgment or final order complained of, this court is without jurisdiction to review such judgment or final order, and the same will be dismissed.

Appeal from District Court, Pontotoc county; Bob Howell, Judge.

Action by the State of Oklahoma ex rel. State Highway Commission against Ola Mae Asendorf. From a judgment for defendant based upon verdict of jury fixing amount of compensation for realty appropriated for highway construction purposes, plaintiff appeals. Dismissed.

Mac Q. Williamson, Attorney General, Finis O. Stewart, Assistant Attorney General, for plaintiff in error.

Thompson & Braly, Ada, for defendants in error.

JOHNSON, J.

¶1 The record discloses that this case was tried in the District Court of Pontotoc County, Oklahoma, and the order overruling motion for new trial was entered January 16, 1948. The petition in error with case made attached was filed in this court July 21, 1948.

¶2 It becomes manifest that this court has no jurisdiction to hear and determine this case on appeal for the obvious reason that this proceeding in error was not commenced in this court within six months from the rendition of the order overruling motion for new trial as provided by 12 O.S. 1941 § 972.

¶3 In Howard v. Arkansaw, 59 Okl. 206, 158 P. 437, it is stated:

"The question of jurisdiction is primary and fundamental in every case, and cannot be waived by the parties or overlooked by the court. It is the bounden duty of the court to examine into its jurisdiction, whether raised by any party or not, and sua sponte to determine its own jurisdiction.

"Where the petition in error is not filed in the Supreme Court within six months from the rendition of the judgment or final order complained of, this court is without jurisdiction to review such judgment or final order, and the same will be dismissed."

¶4 To the same effect see Allen & Co. v. Robertson, 180 Okl. 444, 70 P.2d 75, and Dunbar v. Phillips Petroleum Co., 175 Okl. 489, 53 P.2d 545.

¶5 Appeal dismissed.

¶6 ARNOLD, V. C. J., and WELCH, CORN, GIBSON, LUTTRELL, HALLEY and O'NEAL, JJ., concur.