Cowart v. Parker Wash. Co.

• Decision Date: 28 October 1913
• Docket Number: Case Number: 5308
• Citation: 40 Okla. 56,1913 OK 607,136 P. 153
• Parties: COWART v. PARKER- WASHINGTON CO. et al.
• Court: Oklahoma Supreme Court

1913 OK 607

136 P. 153

40 Okla. 56

COWART v. PARKER- WASHINGTON CO. et al.

Case Number: 5308

Supreme Court of Oklahoma

Decided: October 28, 1913

Syllabus

¶0 1. APPEAL AND ERROR--Time for Appeal-- Extension. 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. SAME--Motion for New Trial--Necessity. A motion for new trial is unnecessary to enable this court to review the action of 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.

Harry F. Eagan and Campbell & Beall, for plaintiff in error.

Gibson & Thurman, S. V. O'Hare, and J. C. Davis, for defendants in error.

HAYES, C. J.

¶1 This proceeding in error is prosecuted by petition in error and case- made. Defendants in error have filed a motion to dismiss the proceeding, upon the ground that the case-made is a nullity because not served within the time provided by statute. The appeal seeks to reverse an order of the trial court sustaining an objection by defendants in error, defendants below, to the introduction of any testimony on the part of plaintiff in error, plaintiff below, for the reason that plaintiff's petition failed to state a cause of action. Said order was made on the 1st day of October, 1912, at which time the court, upon sustaining the objection to the introduction of any testimony, dismissed plaintiff's action. At that time section 6074, Comp. Laws 1909 (Rev. Laws 1910, sec. 5242), was in force. By this section it is provided that a case-made or a copy thereof must, within three days after the judgment or order is entered, be served upon the party or his attorney, unless within said period of time an extension of time for the service of the case-made is granted. No extension of time was asked for or granted within three days after the order complained of was entered; but a motion for new trial was filed, which was on February 21, 1913, overruled. Within three days thereafter an extension of time to serve the case-made was granted, and the case-made was served within that time. It is the contention of plaintiff that, the case- made having been served within an extension of time granted within three days after the overruling of the motion for a new trial, it is a valid case-made. It is well settled that, where a motion for new trial is unnecessary to present for review to this court an order or judgment complained of, the filing of such motion and decision thereon by the court are ineffectual for the purpose of extending time within which to perfect an appeal, and that the time begins to run from the rendition of the judgment or order complained of, and not from the order overruling the motion for new trial. Healy v. Davis, 32 Okla. 296, 122 P. 157; Manes v. Hoss, 28 Okla. 489, 114 P. 698; Springfield Fire & Marine Ins. Co. v. Gish-Brook & Co., 23 Okla. 824, 102 P. 708. The principal question presented by the motion to dismiss is, therefore, whether a motion for new trial is necessary to present to this court for review an order of the trial court sustaining an objection to the introduction of any evidence by plaintiff upon the ground that his petition does not state a cause of action. This question was referred to in M., O. & G. Ry. Co. v. McClellan, 35 Okla. 609, 130 P. 916, in the following language:

"Referring to the fourth assignment, it has been suggested that, in Goulding et al. v. Eidson et al., 2 Kan. App. 307, 43 P. 104, it was held that the ruling of a trial court sustaining an

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