Peoria Corp. v. Lemay

Peoria Corp. v. Lemay
1995 OK 45
895 P.2d 1342
65 OBJ 3229
Case Number: 82866
Decided: 05/09/1995
Supreme Court of Oklahoma

THE PEORIA CORPORATION, APPELLEE,
v.
JACQUE LEMAY, APPELLANT.

ORDER

ALMA WILSON, Chief Justice.

¶1 This appeal was dismissed as premature on September 27, 1994, 895 P.2d 1340. On October 17, 1994, Lemay filed an amended petition in error with an instrument attached purporting to be the order denying a motion to vacate a judgment. Appellee responded and moved to dismiss the appeal because the order on the motion to vacate had not been filed in the District Court.

¶2 The instrument attached to Lemay's amended petition in error is an order denying a motion to vacate. This order does not appear in the record certified to us by the Clerk of the District Court. The trial court record shows no appealable order on the motion to vacate conforming to 12 O.S.Supp. 1993 § 696.3 . We also note that Lemay's petition in error of November 10, 1994 was not accompanied with the required fee. 20 O.S.Supp. 1993 § 15 . After an appeal is dismissed as premature a new appeal may be filed when accompanied by the required filing fee. 12 O.S.Supp. 1993 § 990A (F); Matter of K.L.F., 878 P.2d 1067 (Okla. 1994). This appeal is dismissed as premature. 12 O.S.Supp. 1993 § 990A (F).

¶3 KAUGER, V.C.J., and HODGES, LAVENDER, HARGRAVE, SUMMERS and WATT, JJ., concur.

¶4 SIMMS, J., concurs specially.

¶5 OPALA, J., concurs and files opinion.

OPALA, Justice, concurring.

¶1 The court today dismisses Jacque Lemay's [Lemay] renewed (second) appeal as premature. It correctly reasons that, because the exhibit attached to her amended petition in error - an unfiled December 10, 1993 order denying her postjudgment vacation quest - does not appear of record below, the court is without reviewing cognizance of this case. I write separately to explain that Lemay's effort to secure corrective relief is prosecuted from a non-appealable nisi prius ruling - one that, though in writing, is not on file

¶2 The September 21, 1993 default judgment in this cause is now clearly beyond this court's reviewing cognizance.

¶3 Although dismissed for that reason, Lemay's review quest is not just "premature".

¶4 This

Footnotes:

1 The terms of 12 O.S. 1991 § 990A (A) provide in pertinent part:

"An appeal to the Oklahoma Supreme Court, if taken, must be commenced by filing a petition in error . . . within thirty (30) days from the date a judgment, decree or appealable order . . . is filed with the clerk of the trial court." (Emphasis added.)

2 The terms of Rule 1.11(a), Rule of Appellate Procedure in Civil Cases, 12 O.S. 1991 Ch. 15, App. 2, provide in pertinent part:

"An appeal from a district court may be commenced only by filing a petition in error within thirty (30) days of the date of judgment . . . ." (Emphasis added.)

3 See the terms of 12 O.S. 1991 § 990A (A), supra note 1.

4 See In re B.D., 212 Ill. App.3d 251, 156 Ill.Dec. 462, 464, 570 N.E.2d 1184, 1186 (1991), where an appeal was deemed premature because it was brought in advance of the trial court's written judgment, and Smith v. Matthews, 203 N.C. 218, 165 S.E. 350 (1932), where the term "premature appeal" was circumscribed to mean ". . . one which is taken before final judgment, or upon an order affecting a substantial right which could be protected by an appeal from a final judgment." (Emphasis added.) 165 S.E. at 350. Cf. the terms of FED R.APP.P. 4(a)4, which provide in pertinent part:

"A notice of appeal filed before the disposition of [a post-judgment motion] shall have no effect." (Emphasis added.)

See also Shields v. Consolidated Rail Corp., 810 F.2d 397, 399 (3rd Cir. 1987).

5 See in this connection WEBSTER'S NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE 1950 (2d ed. 1961).

SIMMS, Justice, concurring specially:

¶1 We are confronted here with a pro se, lay litigant who apparently doesn't understand that under the provision of 12 O.S. 1991 § 990A (A), the event which triggers the time to appeal is the filing of the appealable order signed by the Judge with the Clerk of the District Court. This is why the appeal appears to be premature. Neither can an amended petition in error be filed in an appeal which has been previously dismissed.