First Nat. Bank of Okemah v. Lowe & Campbell Athletic Goods Co., Case Number: 25317

• Decision Date: 21 January 1936
• Docket Number: Case Number: 25317
• Citation: 53 P.2d 1118,1936 OK 48,175 Okla. 506
• Parties: FIRST NAT. BANK OF OKEMAH v. LOWE & CAMPBELL ATHLETIC GOODS CO.
• Court: Oklahoma Supreme Court

1936 OK 48

53 P.2d 1118

175 Okla. 506

FIRST NAT. BANK OF OKEMAH v. LOWE & CAMPBELL ATHLETIC GOODS CO.

Case Number: 25317

Supreme Court of Oklahoma

Decided: January 21, 1936

Syllabus

¶0 1. APPEAL AND ERROR - Time for Appeal not Extended by Filing Unnecessary Motion for New Trial - Judgment for Plaintiff on Pleadings and Opening Statement.

Where judgment for plaintiff is rendered by the trial court, on plaintiff's motion for judgment on defendant's opening statement and the pleading, a motion for a new trial is unnecessary and unauthorized by statute, and does not extend the time within which an appeal must be perfected In the Supreme Court, and the time for perfecting such appeal runs from date such judgment is rendered, and not from the date of the overruling of such unnecessary and unauthorized motion.

2. SAME - Dismissal of Appeal Where not Perfected Within Six Months After Judgment.

Where the record shows that more than six months elapsed between the date of the judgment and the date when the petition in error and case-made are filed in the Supreme Court, such court has no jurisdiction to consider and adjudicate the questions sought to be raised by the petition in error, and the attempted appeal will be dismissed.

Appeal from District Court, Okfuskee County; J. Harvey Smith, Judge.

Action by Lowe & Campbell Athletic Goods Company against the First National Bank of Okemah, Okla., for $158.03 with interest thereon from the 23rd day of September, 1929, $35 attorneys fee, and costs, by reason of defendant's negligence in paying out funds on a school district warrant, indorsed "Lowe & Campbell, by W.C. Duke, W.C. Duke," it being alleged that said warrant was indorsed without paintiff's authority. Action in district court on appeal from justice court; judgment for plaintiff on its motion for judgment on defendant's opening statement and the pleadings, and defendant appeals. Appeal dismissed.

Jas. M. Shackleford, for plaintiff in error.

Leon C. Phillips, J. Walter Long, Jr., and Thomas Z. Wright, for defendant in error.

PER CURIAM.

¶1 This action was commenced by Lowe & Campbell Athletic Goods Company, a corporation, against the First National Bank of Okemah, Okla., a corporation, in a justice of peace court in Okfuskee county, Okla. From the judgment of the justice of the peace, an appeal was taken to the district court of Okfuskee county, Okla.

¶2 On December 13, 1932, the case came on regularly for trial in the district court before J. Harvey Smith, district judge, without the intervention of a jury. The court requested counsel to state their case, and thereupon opening statements were made by counsel for plaintiff and by counsel for the defendant. No answer or other pleadings had been filed by defendant, either in the justice court or in the district court. Counsel for plaintiff thereupon moved for judgment against defendant and in favor of plaintiff, on defendant's opening statement and the pleadings. The motion was argued. The court sustained the motion and rendered judgment for plaintiff for $158.03, with interest at 6 per cent. from September 9, 1929, and costs of the action. Plaintiff then tendered the warrant for cancellation, and the same was ordered canceled and merged in the judgment. Notice of appeal was given, and an extension of 30, 10 and 5 days given; supersedeas bond allowed; execution stayed for ten days, pending giving and approval of the bond, all as per journal entry.

¶3 A motion for a new trial was filed December 10, 1932. Journal entry of the judgment of December 13, 1932, was filed January 25, 1933. In this journal entry no exceptions are taken or allowed, no notice of appeal, no time allowed to make, serve, and settle case-made, or provision for supersedeas bond, and no notice taken of the motion for new trial.

¶4 On July 24, 1933, the motion for a new trial was overruled, notice of appeal given, 60 days allowed to make and serve case-made, ten days to suggest amendments, case-made to be settled upon five days' notice in writing by either party. Provision was made for giving supersedeas bond, and execution stayed for 20 days pending the giving and approval of the bond. Supersedeas bond dated July 25, 1933, was given and approved July 28, 1933.

¶5 Petition in error and case-made was filed in the Supreme Court of Oklahoma January 22, 1934. This was Within six months from date of overruling the motion for a new trial, but more than six months after date of rendition of the judgment. The judgment in the district court was on December 13, 1932; the journal entry of judgment was filed January 25, 1933.

"All proceedings for reversing, vacating or modifying judgments, or final orders shall be commenced within six months from the rendition of the judgment or final order complained of." Section 547, O. S. 1931.

¶6 Unless the motion for a new trial was effectual to extend the time within which proceedings to reverse this judgment must be commenced, the appeal was filed in the Supreme Court too late; the court is without jurisdiction, and the appeal should be dismissed.

¶7 Plaintiff in error does not discuss this question in its brief, but the question is fully discussed and authorities cited by defendant in error in its brief. No repy brief has been filed.

¶8 The legal effect of plaintiff's motion for judgment on the pleadings and defendant's opening statement, was to make such opening statement an agreed statement of facts. There was no necessity for a motion for a new trial. Barnett v. Tabor, 154 Okla. 20, 6 P.2d 787; Bd. of Com'rs, Garfield County, v. Chas....