DUNLAP v. CITY OF ARDMORE

DUNLAP v. CITY OF ARDMORE
1955 OK 375
296 P.2d 171
Case Number: 36872
Decided: 12/20/1955
Supreme Court of Oklahoma

E. DUNLAP, JR., AND G.W. CLAY, PLAINTIFFS IN ERROR,
v.
CITY OF ARDMORE, A MUNICIPAL CORPORATION, DEFENDANT IN ERROR.

Syllabus

¶0 1. A new trial is a re-examination in the same court of an issue of fact after trial, and where there has been no trial on an issue of fact a motion for a new trial is unnecessary.

2. Where the hearing is upon a motion to spread a mandate of this Court of record in the lower court after a reversal of the lower court's judgment with directions to enter judgment for the plaintiff, the hearing is confined to the entry of the judgment as directed by this Court. No issue of fact is presented and no motion for new trial is necessary to review the action of the trial court.

3. Where a motion for a new trial is unnecessary the filing of such motion does not operate to extend the time within which an appeal may be taken.

[296 P.2d 171]

Appeal from the District Court of Carter County; John C. Caldwell, Judge.

[296 P.2d 172] Action by the City of Ardmore to quiet title to certain real property. Action of the trial court in spreading mandate of this court of record and entering judgment for the plaintiff as directed is appealed by defendants. Appeal dismissed.

H.A. Ledbetter, Ardmore, for plaintiff in error, E. Dunlap, Jr., Joe B. Thompson, Joseph M. Culp, Ardmore, for plaintiff in error, G.W. Clay.

Riddle & Riddle, by Andrew B. Riddle, Andrew B. Riddle, Jr., Ardmore, for defendant in error.

PER CURIAM.

¶1 The parties are referred to by their trial court designation.

¶2 This is the second appeal of this case. The former opinion is reported as City of Ardmore v. Knight, Okl.,

¶3 The function of a Motion for a New Trial is to open the way for an examination of errors occurring in the trial upon issues of fact. Where the hearing is to enter judgment conforming to the directions of this Court's opinion and mandate, there are no facts to be determined unless factual issues are left undecided by this Court's opinion. This case was not reversed for a new trial nor were any questions of fact left open for determination by the trial court. Here, the trial court was merely performing the more-or-less ministerial function of rendering the exact judgment directed by this Court. No new trial was necessary to review its action. The judgment pursuant to the mandate of this Court, and the Order overruling defendants' Motion, were entered on June 18, 1954. The Petition in Error was not filed until April 9, 1955. This was not within the time allowed by statute. The lodging of an appeal within the time authorized by statute is jurisdictional and this question may be raised at any time by the court on its own motion. When the filing and determination of a motion for a new trial is unnecessary such motion does not extend the time in which to file the appeal. Durham v. Sharum, 203 Okl. 426,

¶4 Appeal dismissed.

¶5 The Court acknowledges the aid of the Supreme Court Commissioners in the preparation of this opinion. After a tentative opinion was written by Commissioner Nease and approved by Commissioners Crawford and Reed, the cause was assigned to a Justice of this Court. Thereafter, upon report and consideration in conference, the foregoing opinion was adopted by the Court.

¶6 JOHNSON, C.J., and CORN, HALLEY, JACKSON and HUNT, JJ., concur.

¶7 WILLIAMS, V.C.J., and WELCH, DAVISON and BLACKBIRD, JJ., concur in result.