Hebeison v. Hatchell

• Decision Date: 05 September 1906
• Citation: 87 P. 643,17 Okla. 260,1906 OK 56
• Parties: ARNOLD HEBEISON v. FRANK HATCHELL.
• Court: Oklahoma Supreme Court

1906 OK 56

87 P. 643

17 Okla. 260

ARNOLD HEBEISON v. FRANK HATCHELL.

Supreme Court of Oklahoma

Decided: September 5, 1906

Syllabus

¶0 1. APPEAL--Time of Taking. Under Section 574 of our Civil Code, proceedings for reversing, vacating or modifying judgments or final orders must be commenced in the supreme court within one year after the rendition of the judgment or making of the final order which is sought to be reviewed by this court, unless the person entitled to such proceeding be under disability, as provided in said section.

2. SAME--No Jurisdiction After One Year. Where more than one year has intervened between the rendition of the judgment or final order sought to be reviewed and the filing of the petition in error in the supreme court, this court is without jurisdiction to review the judgment of the trial court.

Error from the District Court of Kay County; before Bayard T. Hainer, Trial Judge.

C. W. Ransom, for plaintiff in error.

Cline & Duvall and Dale & Bierer, for defendant in error.

PANCOAST, J.:

¶1 The plaintiff in error and the defendant in error were contestants before the department of the interior for the northeast quarter of section 26, in township 28, north of range 1, east, in Kay county, Oklahoma, each claiming the tract of land under the homestead laws. The defendant in error was the successful contestant, and was awarded the land. The tract was involved in the contest for a number of years, during which time each occupied a portion thereof.

¶2 This action was brought in the district court of Kay county by the defendant in error against the plaintiff in error, under section 289 of Wilson's Annotated Statutes, to recover the possession and for the sum of $ 920.00, for the use and occupation of the land by the plaintiff in error. For answer, the defendant below filed a general denial. Afterwards, by leave of court, the defendant filed his cross-petition, setting up, among other things the fact that the parties had been applicants before the department of interior for the land. and that the same had been awarded to the plaintiff below, but alleging that there was error in the decision of the secretary of the interior and a misapplication of law, and attempting to set up sufficient facts to enable him to hold the plaintiff as trustee for his benefit, and praying that the plaintiff be adjudged to hold the legal title in trust for the defendant, and that he be required to convey the same to the defendant.

¶3 To this cross-petition, the plaintiff filed a demurrer, on the ground that the said cross-petition did not contain a sufficient statement of facts to constitute a cause of action against the plaintiff and in favor of the defendants, or to entitle the defendant to any relief thereunder. This demurrer came on to be heard on the 7th day of September, 1904, at a regular session of the district court of Kay county, and on that date, the demurrer was sustained, and judgment rendered thereon. Thereupon the defendant electing to stand upon his cross-petition, a final judgment was rendered in the case, "That the defendant take nothing under said cross-petition, as contained in paragraph one, two, three, four and five of the defendant's answer and cross-petition, and that the cross-petition herein be dismissed; to all of which the defendant excepted."

¶4 The appeal in this case was not filed in this court until October 6, 1905, more than one year after the rendition of judgment upon the demurrer to the cross-petition. A motion has been made by the defendant in error to dismiss the petition in error in this case for the reason that...