Opinion
No. 10
Opinion Filed September 16, 1908.
APPEAL AND ERROR — Time of Taking Appeal. Under Act Cong. March 3, 1905, c. 1479, sec. 12, 33 Stat. 1081 (U.S. Comp. St. Supp. 1907, p. 208), providing that appeals and writs of error shall be taken from the United States Courts in the Indian Territory to the United States Court of Appeals of said territory in the same manner that cases are taken by appeal and writ of error from the Circuit Courts of the United States to the Circuit Court of Appeals for the Eighth Circuit, a writ of error must be sued out within six months after the entry of the judgment sought to be reviewed.
(Syllabus by the Court.)
Error from the United States Court for the Southern District of the Indian Territory at Chickasha; J. T. Dickerson, Judge.
Action by the Rock Island Plow Company against G. W. Utterback. Judgment for plaintiff, and defendant brings error. Dismissed.
The action was brought by defendant in error in the United States Court for the Southern District of the Indian Territory at Chickasha against plaintiff in error on a foreign judgment. Judgment was rendered and entered in that court in favor of defendant in error on the 28th day of November, 1906. A motion for new trial was overruled on December 5, 1906. Petition in error was filed in this court on November 27, 1907.
Wm. Stacey, for plaintiff in error.
Barefoot Carmichael, for defendant in error.
A motion to dismiss has been filed by defendant in error in which he alleges several grounds for dismissal. One ground alleged is that no writ of error was sued out by plaintiff in error within six months from the date of the entry of the judgment in the trial court. Under the rule announced by this court in Edward Porter et al. v. Eck E. Brook, 21 Okla. 885, 97 P. 645, and in H. K. Bickford v. Stanley R. Bruce et al. 21 Okla. 892, 97 P. 648 the motion to dismiss in this case should be sustained upon this ground, and it is unnecessary to notice the other grounds set out in the motion.
The motion to dismiss is sustained.
Williams, C. J., and Dunn, Kane and Turner, JJ., concur.