Opinion
No. 12235
Opinion Filed September 18, 1923.
(Syllabus.)
Appeal and Error — New Trial — Time for Motion — Effect on Review.
Sections 5035 and 5036, Rev. Laws 1910, requiring a motion for new trial to be filed within three days after the verdict or decision is rendered, and to be made in writing, are mandatory; and, in the absence of a showing that the party filing said motion has been unavoidably prevented from doing so within the time fixed by statute, this court will not consider errors occurring at the trial.
Error from District Court, Oklahoma County.
Action by M.M. Bowers against L.L. Cheever, administrator of estate of M.W. Bowers, deceased. Judgment for defendant and plaintiff brings error. Dismissed.
Rittenhouse Rittenhouse, P.T. McVay, and Gordon Stater, for plaintiff in error.
A.L. McRill, for defendant in error.
Defendant in error has filed a motion to dismiss appeal of the plaintiff in error for the reason that the motion for a new trial was not filed within the time required by law. On November 23, 1920, the trial court sustained a demurrer to plaintiff's answer and rendered judgment for the defendant in this case. On the same day, counsel for plaintiff suggested that a motion for a new trial, alleging all the statutory grounds, be considered filed. A motion was considered filed as suggested and immediately overruled by the trial court, to which plaintiff excepted, gave notice of appeal, and on application was granted an extension of time in which to prepare and serve case-made. However, the motion for a new trial was not actually filed until January 22, 1921, 60 days after the pretended motion was overruled.
The facts in this case are the same as the facts in Clark v. Cawdell, 72 Oklahoma, 181 P. 285, in which the court said:
"The motion not having been filed within three days, as required by the statute (sec. 5035, Rev. Laws, 1910), the judgment of the lower court must be affirmed on authority of Ronne v. Hirsh, 71 Oklahoma, 178 P. 88, and Ewert v. Wills, 72 Oklahoma, 178 P. 87."
For the reasons stated, the appeal is dismissed.
All the Justices concur.