Opinion
No. 31014.
October 27, 1942.
(Syllabus.)
APPEAL AND ERROR — Motion for new trial ineffective to extend time for appeal from order sustaining demurrer to petition and dismissing case.
Where the court sustains a demurrer to the petition and dismisses plaintiff's cause of action, the appeal should be taken from the order made thereon, and the filing and determination of a motion for new trial thereafter does not extend the time in which an appeal from said order can be perfected.
Appeal from District Court, Creek County; C.O. Beaver, Judge.
Action by Ethel Riddler et al. against E.A. Kelleam et al., for special relief and appointment of receiver. From an order sustaining a demurrer to the petition and dismissing the case, plaintiffs appeal. Dismissed.
Heber Finch, of Sapulpa, for plaintiffs in error.
Glenn O. Young, of Sapulpa, for defendants in error.
On December 1, 1941, the court sustained a demurrer to the petition and entered an order dismissing the cause. Thereafter a motion for new trial was filed and the petition in error and case-made predicated upon the alleged error in overruling the motion for new trial was filed in this court June 23, 1942.
A motion to dismiss has been filed for the reason that the appeal has not been perfected within the six months allowed by law. The appeal must be dismissed. See Miller v. Mentzer, 186 Okla. 496, 98 P.2d 913; In re Anderson's Guardianship, 161 Okla. 224, 18 P.2d 1073; Jones Spicer v. Advance-Rumley Thresher Co., 157 Okla. 67, 10 P.2d 724; Graf Packing Co. v. Pelphrey, 171 Okla. 416, 42 P.2d 889.
The appeal is dismissed.
OSBORN, BAYLESS, GIBSON, HURST, DAVISON, and ARNOLD, JJ., concur. WELCH, C. J., CORN, V. C. J., and RILEY, J., absent.