Cassidy v. Thompson

• Decision Date: 22 November 1921
• Docket Number: Case Number: 10314
• Citation: 202 P. 291,1921 OK 397,84 Okla. 33
• Parties: CASSIDY et al. v. THOMPSON.
• Court: Oklahoma Supreme Court

1921 OK 397

202 P. 291

84 Okla. 33

CASSIDY et al. v. THOMPSON.

Case Number: 10314

Supreme Court of Oklahoma

Decided: November 22, 1921

Syllabus

¶0 1. Appeal and Error--Jurisdiction--Necessity for Motion for New Trial.

A motion for a new trial is necessary to give this court jurisdiction to review errors occurring at the trial of a case where final Judgment has been rendered.

2. Same--Garnishment Proceedings--Review.

In a garnishment proceeding, where plaintiff gives notice of issues Joined on the answer of garnishee and on an answer by defendant, and issue is joined and evidence taken and proceeding is had as provided in sections 4827 and 4832, Rev. Laws 1920, the Supreme Court has no Jurisdiction to review said proceeding upon appeal unless a motion for a new trial asking the trial court to review its errors is filed in the trial court and the same is overruled and error assigned for overruling the same. Harper v. Rutland Sav. Bank, 79 Okla. 274, 192 P. 1101.

Error from County Court, Lincoln County; Ira E. Billingslea, Judge.

Action by S. J. Thompson against Mrs. E. J. Cassidy for broker's commission; First State Bank of Chandler, garnishee. Judgment for plaintiff, and adverse parties bring error. Dismissed.

Cox & Cox, for plaintiff in error Mrs. E. J. Cassidy.

Erwin & Erwin, for defendant in error.

ELTING, J.

¶1 This action was commenced in the county court of Lincoln county, state of Oklahoma, on February 9, 1918, by S. J. Thompson, defendant in error, against Mrs. E. J. Cassidy, plaintiff in error, and the First State Bank of Chandler, a corporation, garnishee, by filing of a petition by the defendant in error asking for the recovery of $ 200 for commission due for the sale of certain lands belonging to the plaintiff in error. There was also a garnishment proceeding commenced against the garnishee bank for the plaintiff on the 15th day of February, 1918, by the filing of a garnishment affidavit.

¶2 It appears from the record that, after evidence was taken and upon motion of the plaintiff, the county court instructed a verdict in favor of the plaintiff on the claim for commission in the sum of $ 200. No motion for a new trial was made to review the action of the court in so directing a verdict and judgment thereon. Afterwards the defendant, Mrs. Cassidy, filed an answer in the garnishment, and the bank, garnishee, also filed an answer. The plaintiff served notice upon the garnishee and Mrs. Cassidy that he would Join issue on the answers in the garnishment proceeding, and on July 1st the county court gave Judgment in the garnishment proceeding against the garnishee on the pleadings; and on July 2nd, upon motion of the garnishee to vacate and set aside said judgment, the judgment on the garnishment was vacated and set aside and evidence was introduced on the garnishment hearing, and after the introduction of the evidence and on motion of plaintiff, the court entered judgment against the garnishee. The plaintiff in error gave notice and prayed an appeal, both on the main judgment and on the garnishment proceeding, and garnishee also appealed upon the garnishment; appeal perfected and filed in this court.

¶3 No motion for a new trial was filed, either in the main action or in the garnishment proceeding. The defendant in error has moved to dismiss this cause upon four grounds: First. That the case-made was not served within any valid extension of time granted. Second. That the errors complained of were not presented to the trial court by motion for a new trial. Third. That the appeal was not filed within six months from the date of final judgment. Fourth. That the order of the trial court sustaining the garnishment is not an appealable order.

¶4 The first, third, and fourth contentions for dismissal of this appeal we will not consider herein. They may or may not he well taken. We hold that the failure to file a motion for a new trial either in the main action or in the hearing upon the garnishment is fatal to this appeal, and the same will be dismissed.

¶5 The trial of the garnishment proceeding in this case was had under sections 4827 and 4832, Rev. Laws of 1910. Section 4827 provides as follows:

"The answer of the garnishee

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