Opinion
No. 21329
Opinion Filed September 9, 1930.
(Syllabus.)
1. Appeal and Error — Record — Motions for New Trial and to Vacate Judgment not Part of Judgment Roll.
Motion for new trial and a motion to vacate judgment are no part of the judgment roll and cannot be presented by transcript, but must be presented by bill of exceptions or case-made.
2. Appeal and Error — Appeal to Be Perfected Within Six Months After Judgment Where Error Presented by Transcript.
Where an alleged error of the trial court is presented by petition in error with transcript attached and such appeal is not lodged in this court within six months from the date of the action of the trial court complained of, this court does not acquire jurisdiction to review the same, and the appeal will be dismissed.
Error from Common Pleas Court, Tulsa County; S.G. Clendenning, Judge.
Action by D.C. Sneed against Wm. Lynch and. C.C. Johnson. From the judgment of the trial court in favor of plaintiff, defendants appeal. Dismissed.
T.L. Brown and Woodson E. Norvell, for plaintiffs in error.
Leahy, Maxey, McDonald Holden, for defendant in error.
This is an appeal from a judgment of the common pleas court of Tulsa county rendered on the 2nd day of November, 1929, in an action wherein the plaintiffs in error were defendants.
A motion for new trial was duly filed and was overruled on December 14, 1929, and on January 16, 1930, there was filed a motion to vacate the judgment which motion was on the same day overruled. The appeal is by transcript and was filed in this court May 12, 1930.
The cause is now before the court on motion to dismiss the appeal for the reason the appeal was not lodged in this court within the time allowed by law.
The motion for new trial and motion to vacate the judgment are no part of the judgment roll and cannot be presented for review by transcript, but must be presented by bill of exceptions or case-made. Richardson v. Beidleman, 33 Okla. 463, 126 P. 818; Davis v. DeGeer, 91 Okla. 111, 216 P. 156; Brigham v. Davis, 126 Okla. 90, 258 P. 740.
Where the alleged error of the trial court is presented by petition in error with transcript attached and such appeal is not lodged in this court within six months from the date of the action of the trial court, this court does not acquire jurisdiction to review the same, and the appeal will be dismissed. Brigham v. Davis, supra.
The judgment having been rendered on November 2, 1929, and the appeal filed in this court May 12, 1930, the appeal therefore was not filed within the six months required by section 798, C. O. S. 1921, and this court is without jurisdiction to review the judgment, and the appeal is dismissed.