Opinion
No 10868
Filed October 21, 1919. Rehearing Denied January 6, 1920.
(Syllabus by the Court.)
1. New Trial — Ruling on Motion — Reconsideration — Time for.
A motion to vacate an order overruling motion for new trial can serve no purpose but to take the place of an application or petition for new trial, and does not have the effect of extending the time within which the trial court may reconsider its order denying motion for new trial beyond the term at which the same was made, or to extend the time in which a petition for new trial, after the term, may be filed.
2. Same — Motion for New Trial — Time for Filing.
Under section 5035, Rev. Laws 1910, application for new trial must be made at the term the judgment was rendered, except in the instances mentioned in said section, and a petition for new trial, after the term, under the provisions of section 5037, Rev. Laws 1910, must be filed within one year after the final judgment was rendered.
Error from District Court, Jefferson County; Will Linn, Judge.
Motion by C.S. Wade to vacate order overruling motion for new trial. From a judgment in favor of Hope Killingsworth, adverse, parties striking motion from the files and denying the relief prayed, Wade brings error. Appeal dismissed as frivolous.
H.P. Lockett, for plaintiff in error.
Bridges Vertrees and A.W. Reynolds, for defendants in error.
From a judgment in favor of Hope Killingsworth, entered October 15, 1915, Wade prosecuted error to this court, and his appeal was dismissed (65 Oklahoma, 162 P. 742). He filed an application in the trial court for new trial, and from a judgment denying that application he again appealed to this court, where the judgment of the lower court was affirmed (74 Oklahoma, 176 P. 402), for the reason that his application was not filed within one year after final judgment was rendered in the trial court. He then filed a motion to vacate the order overruling his motion for new trial. Upon consideration of this motion, and after permitting the introduction of evidence and argument of counsel, the trial court refused to grant the relief prayed and sustained a motion by defendants in error to strike Wades' motion from the files. From that judgment this appeal is prosecuted.
A motion to vacate an order overruling motion for new trial can serve no purpose but to take the place of an application or petition for new trial, and does not have the effect of extending the time in which the trial court may reconsider its order denying a motion for new trial beyond the term at which the same was made, as provided by section 5035, Rev. Laws 1910, or to extend the time in which a petition for new trial may be filed under the provisions of section 5037, of this statute, which requires same to be filed within one year from the date of the final judgment. Owen v. Dist. Ct. of Okla. Co., 43 Okla. 442, 143 P. 17; Continental Gin Co. v. Arnold, 66 Oklahoma, 167 P. 613; Dorland v. Cunningham, 66 Cal. 484, 6 P. 135.
The appeal, therefore, is dismissed.
RAINEY, PITCHFORD, McNEILL, and HIGGINS, JJ., concur.