Burcham v. Edwards, Case Number: 2535

CourtSupreme Court of Oklahoma
Writing for the CourtHARRISON, C.
Citation37 Okla. 194,1913 OK 212,131 P. 528
PartiesBURCHAM v. EDWARDS et al.
Decision Date04 April 1913
Docket NumberCase Number: 2535

1913 OK 212
131 P. 528
37 Okla. 194

EDWARDS et al.

Case Number: 2535

Supreme Court of Oklahoma

Decided: April 4, 1913


¶0 NEW TRIAL--Motion--Time of Filing. The filing of a written motion for a new trial, containing the grounds therefor, with the clerk of the court in which a case has been tried, within three days after the verdict or decision was rendered, is a sufficient compliance with the statute as to the time within which an application for a new trial must be made without an actual presentation of such motion to the court within the three days.

Error from District Court, Wagoner County; R. C. Allen, Judge.

Action by Ulysses M. Burcham against W. F. Edwards and Nathaniel Peters. Judgment for plaintiff, and, from an order granting a new trial, plaintiff brings error. Affirmed.

Lex V. Deckerd and W. D. Bynum, for plaintiff in error.

Z. I. J. Holt, and Stuart, Cruce & Gilbert, for defendants in error.


¶1 This action was brought by the plaintiff in error, as plaintiff below who obtained a judgment against defendants in error, as defendants below, October 24, 1910. At noon of October 27th, court adjourned for a few days, but not for the term. On the afternoon of October 27th, defendants filed motion for a new trial among the papers in the case with the clerk of the district court. The motion remained among the papers, but was never called up by the moving party, nor was the attention of opposing counsel nor the court called to it during the remainder of the term, but at a subsequent term, which was held by a different judge to the one who tried the case in February, 1911, the motion was called up and presented by defendant. Plaintiff filed motion to dismiss defendants' motion on the ground that the application for a new trial had not been made at the term and within three days after the judgment had been rendered. The court overruled plaintiff's motion to dismiss and sustained defendants' motion for a new trial. Both these assignments are involved in the question whether the mere filing of the motion for a new trial in the clerk's office, without calling the court's attention to such motion on that day or at any subsequent day during the term, was a sufficient compliance with section 5827, Comp. Laws 1909, which requires the application to be made at the term and within three days after judgment. Said section 5827 reads:

"The application for a new trial must be made at the term the verdict, report or

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