Opinion
No. 27013.
June 2, 1936. Rehearing Denied June 23, 1936.
(Syllabus.)
1. Appeal and Error — Unnecessary Motion for New Trial After Motion to Vacate Judgment Overruled not Effective to Extend Time for Appeal.
The filing and determination of a motion for new trial after the order overruling a motion to vacate judgment under subdivision 3 of section 556, O. S. 1931, serves no purpose to extend the time in which an appeal may be filed in this court; and where the appeal is not filed herein until after six months from the date of the order overruling the motion to vacate the judgment, the appeal will be dismissed.
2. Same — Judgment on Supersedeas Bond not Granted Where Appeal Dismissed on Jurisdictional Grounds.
Where the appeal has not been perfected as required by law, and this court acquires no jurisdiction of the case, and the appeal is dismissed on jurisdictional grounds, this court is powerless to render judgment on supersedeas bond.
Appeal from District Court, Dewey County; W.P. Keen, Judge.
Action by the Commerce Trust Company against John F. Haffner and Anna Haffner to foreclose a mortgage. Defendants' motion to vacate judgment was overruled, and from order overruling their motion for new trial, they attempt to appeal. Dismissed.
I.H. Lookabaugh, for plaintiffs in error.
Cohoon Heiple, for defendant in error.
On August 17, 1934, plaintiffs in error filed a motion to vacate a judgment entered August 17, 1934, foreclosing a mortgage. The grounds alleged in said motion are irregularities in entering said judgment under subdivision 3 of section 556, O. S. 1931. On the 21st day of August, 1935, the court overruled a motion to vacate. On August 23, 1935, a motion for new trial was filed which was overruled on the 18th day of September, 1935. An attempted appeal is taken from the order overruling motion for new trial, and the case-made was filed herein March 11, 1936. The appeal must be dismissed for the reason that the filing and determination of a motion for new trial was not necessary and did not extend the time in which the appeal could be filed in this court. Harper v. Rutland Savings Bank, 79 Okla. 274, 192 P. 1101; Chesnut v. Overholser, 75 Okla. 190, 182 P. 683; Powell v. Nichols, 26 Okla. 734, 110 P. 762; Butler v. Archard, 130 Okla. 241, 266 P. 1106; United Mining Milling Co. v. First National Bank of Davis, 167 Okla. 638, 31 P.2d 550; Hawkins v. Steil, 172 Okla. 301, 45 P.2d 147.
The appeal is therefore dismissed.
Defendant in error has requested that judgment be granted on the supersedeas bond upon the dismissal of this case. In Nixon v. General Explosives Co., 89 Okla. 184, 214 P. 911, we said:
"Where the appeal has not been perfected as required by law, and this court acquires no jurisdiction of the case, and the appeal is dismissed on jurisdictional grounds, this court is powerless to render judgment on supersedeas bond."
It appearing, therefore, that this court had no jurisdiction of the appeal, for the reason that the appeal was not taken within six months of the date of the rendition of judgment of the trial court, the motion for judgment on supersedeas bond must be denied.
McNEILL, C. J., OSBORN, V. C. J., and BUSBY, WELCH, PHELPS, and CORN, JJ., concur. RILEY, BAYLESS, and GIBSON, JJ., absent.