Clapper v. Putnam Co., Case Number: 7396

• Court: Supreme Court of Oklahoma
• Writing for the Court: GALBRAITH, C.
• Citation: 1916 OK 588,158 P. 297,70 Okla. 99
• Docket Number: Case Number: 7396
• Decision Date: 23 May 1916
• Parties: CLAPPER et al. v. PUTNAM CO. et al.

1916 OK 588
158 P. 297
70 Okla. 99

CLAPPER et al.
v.
PUTNAM CO. et al.

Case Number: 7396

Supreme Court of Oklahoma

Decided: May 23, 1916

Syllabus

¶0 1. Appeal and Error--Time for Taking Proceedings--Effect of Motion for New Trial.

Where a motion for a new trial is unnecessary to present to this court for review an order or judgment appealed from, such motion and decision thereon by the trial court are ineffectual to extend the time within which to perfect an appeal.

2. Appeal and Error--Presenting Questions in Trial Court--Motion for New Trial.

A motion for new trial is unnecessary to enable this court to review the action or the trial court in sustaining an objection to the introduction of any evidence by a plaintiff upon the ground that his petition fails to state a cause of action.

3. Appeal and Error -- Time for Taking Proceedings--Effect of Motion for New Trial.

The appeal dismissed upon the ground that the petition in error and case-made were not filed in the Supreme Court within the time limited by law.

Error from District Court, Oklahoma County; George W. Clark, Judge.
Action by Marie J. Clapper and another against the Putnam Company and others. From a judgment for defendants, plaintiffs bring error. Dismissed.

Geo. J. Eacock and W. J. Davidson, for plaintiffs in error.

James K. Reed and Burwell, Crockett & Johnson, for defendants in error.

GALBRAITH, C.

¶1 This was an action to quiet title, commenced in the trial court by the plaintiffs in error against the defendants in error. After the issues had been settled, and the cause called for trial, and the plaintiff had been sworn as a witness, and after he had stated his name and the name of his coplaintiff, objection was made to the introduction of any testimony on the ground that the petition did not state facts sufficient to constitute a cause of action in favor of the plaintiffs and against the defendants, or any one of them. This objection was sustained. The plaintiffs electing to stand upon their pleadings and refusing to amend, a motion was then made for judgment on the pleading and sustained, and final judgment was entered dismissing the action at plaintiff's cost. This judgment was entered on November 24, 1914, and motion for new trial was filed November 25, 1914. The motion for new trial was denied on December 21, 1914, and an order entered granting 60 days for making and serving a case-made. On February 11, 1915, an order was made extending time for serving case-made. The case-made was served on the 4th day of May, 1915, and signed and settled on May 24, 1915, and the case-made and petition in error was filed in this court on the 28th day of May, 1915. A motion is here urged by the defendants in error to dismiss the appeal on the ground: [1] That it appears from the case-made that the same was not lodged in this court within the 6; months after date of the final judgment rendered and entered in said cause in the district court of Oklahoma county; [2] that it also appears from the record that the case-made was not served within 15 days after the final judgment of the trial court was entered, and was not served within an extension of time granted by the trial court within 15 days from the date of the entry of judgment; and [3] that the order of the district court made on February 11, 1915, extending the time for making and serving the case-made was without force, since the same was made after the expiration of the time allowed by law for serving the case-made.

¶2 It appears from the face of the record that the order overruling the motion for a new trial was made and entered 27 days after the entry of judgment dismissing the action, and therefore was made beyond the 15 days fixed by statute [section 5242, Rev. Laws 1910] for serving the case-made. If the motion for new trial was necessary, and the appeal was from the order denying a new trial then the appeal was lodged in this court within the 6 months, and within the time provided by statute [section 5255. Rev. Laws 1910, amended by Session Laws 1910-11, p. 35, effective June 13, 1911]; but, if the motion for new trial was not necessary, filing such motion did not enlarge the time for serving the case-made or for perfecting the appeal [Doorley v. Buford & George Mfg. Co., 5 Okla. 594, 49 P. 936; Manes v. Hoss. 28 Okla. 489, 114 P. 698; Healy v. Davis, 32 Okla. 296, 122 P. 157] and the appeal was not perfected in time, and this court has no jurisdiction to consider this cause upon its merits, and the motion to dismiss must be sustained.

¶3 It is insisted on behalf of the plaintiff in error that the errors assigned in the motion for new trial were other than those sustaining the objection to the admission of evidence and rendering judgment on the pleadings, inasmuch as error was assigned to the order of court in vacating a judgment against the defendants and allowing them to be in default, and in sustaining a motion to strike certain parts of the petition, and that under the decisions of this court these last-enumerated errors could only be preserved for review in this court by a motion for new trial, and therefore the decisions holding that the motion for new trial is not necessary to a review of the judgment rendered upon sustaining the objection to introduction of evidence, and upon a judgment rendered upon the pleadings, are not applicable to this case, and, again, that in the instant case, objection not having been made until after the...