Opinion
No. 22374
Opinion Filed February 7, 1933.
(Syllabus.)
Appeal and Error — Time to Perfect Appeal not Extended by Filing Motion for New Trial Where Cause Tried Upon Agreed Statement of Facts.
Where a cause is tried upon an agreed statement of fact, leaving for the court the sole question of law as to such ultimate facts, a motion for new trial does not extend the time in which to perfect the appeal, and on a failure to lodge the appeal within six months from the date of the judgment the appeal will be dismissed.
Appeal from District Court, Pontotoc County; Orel Busby, Judge.
Action by Joe Carter et al. against the City of Ada and others. Judgment for plaintiffs, and defendants appeal. Dismissed.
Thomas P. Holt, for plaintiffs in error.
Ben Hatcher and J.F. McKeel, for defendants in error.
Petition in error and case-made was filed herein May 26, 1931, and a brief in support of the contentions of plaintiff in error was filed June 30, 1931. The unique part of that brief is that plaintiff in error admits its sympathy with the defendant in error, but claims a duty to present the law to the court which would authorize reversal of the cause. But the authorities cited justify the judgment of the lower court, and on the question of merits alone the judgment of the lower court should be affirmed.
But defendants in error filed motion to dismiss on jurisdictional ground that judgment was rendered on an agreed statement of fact without oral evidence April 30, 1930, and that no motion for new trial was filed until February 18, 1931.
They move to dismiss: First, because the motion for new trial not being necessary did not operate to extend the time in which case-made could be served; second, because the motion for new trial was not filed within the statutory time; third, because the case-made was not filed within six months from the date of the judgment.
No response has been filed although motion to dismiss was filed July 20, 1931. We have carefully examined the authorities by reason of the public nature of the case, and are of the opinion the authorities amply support the motion to dismiss. Lusk v. Humble Oil Ref. Co. 140 Okla. 152, 282 P. 311; Federal Surety Co. v. Evans, 139 Okla. 231, 281 P. 952. The cause is therefore dismissed.