Opinion
No. 23911
January 29, 1935.
(Syllabus)
1. APPEAL AND ERROR — Motion for New Trial on Order Vacating Judgment on Motion Unauthorized and Ineffective to Extend Time to Appeal.
Motion for new trial of an order sustaining a motion to and vacating a judgment under section 189, O. S. 1931, is not authorized, and the order overruling the same does not fix the date from which the time to appeal is calculated.
2. SAME — Dismissal of Appeal Taken After Six Months From Date of Order.
An appeal taken from an order vacating a judgment upon motion, under section 189, O. S. 1931, after six months from the date of said order is too late and the Supreme Court is without jurisdiction, and the appeal will be dismissed.
Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.
Action by H. H. Hoppe and others against J. W. Bentley. From an order vacating judgment, plaintiffs appeal. Appeal dismissed.
Edwards Robinson, Leo G. Mann, and C. J. Brown, all of Oklahoma City, for plaintiffs in error.
W. R. Withington, of Oklahoma City, for defendant in error.
In this action the plaintiff in error H. H. Hoppe, July 3, 1930, secured a judgment against the defendant in error, Bentley et al., quieting his tax title to lots 35 and 36, block 7, Carney Heights addition to Oklahoma City, Okla.
April 23, 1931, Bentley filed a motion to vacate the judgment, which motion January 23, 1932, was sustained and an order made vacating the judgment. Hoppe excepted and gave notice of appeal.
The record and evidence establish that at the date of the tax deed J. "W." Bentley owned the lots, and that this motion was based upon section 189, O. S. 1931, and that the action by Hoppe was against J. "W." Bentley in the name of J. "N." Bentley, his name so appearing in the recorded deed. It is clear that Hoppe brought his action against the grantee in the deed and that was J. W. Bentley.
Plaintiff in error, January 25, 1932, filed a motion for new trial of the order vacating the judgment, which was overruled January 29, 1932, notice of appeal given, time granted and extended to make and serve case-made, and the appeal filed in the Supreme Court July 27, 1932, four days after the expiration of six months from the date of the order vacating the judgment quieting title.
The motion for new trial was unauthorized upon the proceedings here involved, and the order thereon did not fix the date from which to calculate the time to appeal. Fliedner v. Hinchee, 157 Okla. 90, 11 P.2d 110; Powell v. Nichols, 26 Okla. 734, 110 P. 762, 29 L. R. A. (N. S.) 886; Barfield Pet. Co. v. Pickering Lbr. Co., 137 Okla. 151,278 P. 391; White v. Security Nat. Bank, 145 Okla. 36, 291 P. 965; Finch v. Smith, 166 Okla. 68, 26 P.2d 750.
The appeal not having been taken within six months from the rendition of the order appealed from, this court acquired no jurisdiction of the appeal, and, therefore, the appeal should be and hereby is dismissed.
The Supreme Court acknowledges the aid of Attorneys James S. Arnote, Chas. H. Hudson, and Chas. R. Freeman in the preparation of this opinion. These attorneys constituted an advisory committee selected by the State Bar, appointed by the Judicial Council, and approved by the Supreme Court. After the analysis of law and facts was prepared by Mr. James S. Arnote, and approved by Mr. Chas. H. Hudson and Mr. Chas. R. Freeman, the cause was assigned to a justice of this court for examination and report to the court. Thereafter, upon consideration by a majority of the court, this opinion was adopted.