Opinion
No. 24884
October 10, 1933.
(Syllabus.)
Appeal and Error — Contents of Record — Order Overruling Motion for New Trial Indispensable.
Where the record does not contain an order of the court overruling a motion for new trial, a mere recital (in the case-made) that the motion for new trial was in fact overruled and exceptions allowed is insufficient, in the absence of such order, and there is nothing properly before this court for review.
Appeal from District Court, Sequoyah County; W.A. Woodruff, Judge.
Action to quiet title by B.B. Ralph against Denny Peters et al. From a judgment for the defendant Francis M. Clark, plaintiff appeals. Dismissed.
R.O. Ingle, for plaintiff in error.
Roy Frye, for defendants in error.
This action was commenced in the district court of Sequoyah county March 11, 1931, and on the 3rd day of January, 1933, a judgment was rendered for the defendant Francis M. Clark, for the possession of the premises involved in the action. A petition in error with case-made attached was filed July 27, 1933, and on August 12, 1933, a motion to dismiss was filed by the defendant Francis M. Clark. This motion alleges that the case-made fails to contain a copy of the final order or judgment sought to be reviewed; that the record filed herein fails to have incorporated an order of the trial court overruling motion for new trial; that the record fails to contain a recital of a notice of intention to appeal. An examination of the record discloses that these allegations are supported by the facts. Either one of these grounds is equally fatal to the appeal. Smith v. Fash, 122 Okla. 104, 251 P. 496; Lillard v. Meisberger, 113 Okla. 228, 240 P. 1067.
The appeal is therefore dismissed.