Stites v. Duit Const. Co., Inc.

Annotate this Case

1912 OK 664
143 P. 1046
35 Okla. 260
Case Number: 4183
Decided: 10/22/1912
Supreme Court of Oklahoma



¶0 APPEAL AND ERROR--Record--Time of Taking Appeal--Dismissal. A proceeding in error commenced in this court to review a judgment rendered or order made ninety days after the close of the session of the Third Legislature of this state, after the expiration of six months from the time of the rendering of said judgment or the overruling of the motion for a new trial, will be dismissed.

Henry Bulow, for plaintiff in error.
A. J. Welch, for defendant in error.


¶1 Defendant in error moves to dismiss this proceeding in error for the reason: First, that the plaintiff in error failed to give notice of the time and place of the presentation of the case-made for settlement; and, second, on the ground that the petition in error, with the case-made, was not filed with the clerk of this court within the time allowed by law for the commencement of proceedings in error to review the judgment of the lower court. Judgment was rendered in the lower court on July 5, 1911. The motion for new trial was overruled on July 17, 1911. The Third Legislature of this state passed an act entitled, "An act to amend section 574 of chapter 66 of the General Statutes of Oklahoma, 1893, entitled 'An act to provide a Code of Civil Procedure for the territory of Oklahoma,'" which provides:

"All proceedings for reversing, vacating, or modifying judgments or final orders shall be commenced within six months from the rendition of the judgment or final order complained of."

¶2 This act was approved on February 14, 1911, without an emergency being declared, as provided for in section 58, article 5 of the Constitution. The session of the Third Legislature ended on March 11, 1911. Said act, therefore, went into effect on June 10, 1911. This proceeding in error, therefore, must have been commenced in this court within six months after the judgment was rendered, if the judgment was sought to be reviewed by a transcript, and within six months from the day the order overruling the motion for a new trial was made, if the same has been made part of the record by means of a case-made. Reed et al. v. Wooley, 31 Okla. 783, 123 P. 1121; Richardson et vir v. Beidleman et al., 33 Okla. 463, 126 P. 818. This proceeding in error was commenced in this court on July 10, 1912. It follows that the same, not having been commenced within six months as required by said act, must be dismissed.

¶3 All the Justices concur.

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