Opinion
No. 30954.
January 5, 1943.
(Syllabus.)
APPEAL AND ERROR — Filing of unnecessary motion for new trial ineffective to extend time for appeal.
The filing and determination of an unnecessary motion for new trial serves no purpose to extend the time in which to perfect an appeal from an order and judgment of the trial court.
Appeal from District Court, Kay County; R.O. Wilson, Judge.
Objection to the report of commissioners of sale in partition. From an order overruling the objection and ordering sale, Frantz (Wah-sha-ki) Liese and others appeal; Mary E. Hadden, guardian of Elizabeth Liese, a minor, made defendant in error. Dismissed.
Raymond A. Trapp, of Blackwell, and Tom L. Irby, of Ponca City, for plaintiffs in error.
R.A. Barney, of Pawhuska, for defendant in error.
This is an appeal from the order and judgment of the trial court entered on October 23, 1941, overruling the objections to the report of the commissioners in partition. Thereafter, on the 27th day of October, 1941, a motion for new trial was filed, and on December 12, 1941, the trial court entered an order purporting to overrule said motion for new trial. The appeal is from the order overruling the motion for new trial. The defendants did not appeal from the order entered by the trial court on the 23rd day of October, 1941.
Under the rule announced many times by this court, the filing and determination of a motion for new trial arising not upon the pleadings but upon a motion is unnecessary, and the determination of the motion for new trial does not extend the time in whch the appeal can be taken. See Powell v. Nichols, 26 Okla. 734, 110 P. 762; Grimes v. Ward, 179 Okla. 5, 64 P.2d 894; Butler v. Archard, 130 Okla. 241, 266 P. 1106; Ginn v. Knight, 106 Okla. 4, 232 P. 936; Fliedner v. Hinchee, 157 Okla. 90, 11 P.2d 110. Under the rule laid down in the above-cited cases, it was not necessary to file a motion for a new trial in order to appeal from the order and judgment made on the report of the commissioners.
Since the determination of the motion for new trial on December 12, 1941, did not extend the time in which to file the appeal in this court, and since the appeal was not filed within six months from and after the date of the judgment on October 23, 1941, this court is without jurisdiction, and the appeal must be, and the same is hereby, dismissed.
WELCH, C. J., and OSBORN, GIBSON, HURST, DAVISON, and ARNOLD, JJ., concur. CORN, V. C. J., and RILEY and BAYLESS, JJ., absent.