Hill v. Mccleery
| Decision Date | 04 February 1930 |
| Docket Number | Case Number: 20811 |
| Citation | 1930 OK 62,284 P. 646,141 Okla. 205 |
| Parties | HILL v. McCLEERY et al. |
| Court | Oklahoma Supreme Court |
SyllabusC
¶0 1. Appeal and Error--Duty of Supreme Court to Determine Its Jurisdiction.
It is the bounden duty of the court to examine into its jurisdiction, whether raised by parties or not, and sua sponte, to determine its jurisdiction.
2. Same--Time for Notice of Appeal not Extended by Filing Necessary Motion for New Trial.
The filing and determination of a motion for new trial of a contested question of fact, not arising on the pleadings but upon motion, is unnecessary to authorize this court to review an order made upon such hearing, and the filing thereof does not extend the time in which notice of appeal may be given.
3. Same--Necessity for Notice of Appeal Within Legal Time.
Where the parties have failed to give notice of their intention to appeal within time prescribed by law, this court is without jurisdiction to review the order of the trial court from which the appeal is taken.
Error from District Court, Ottawa County; J. J. Smith, Judge.
Action by Mark L. Hill against S. J. McCleery and others. From the order of the trial court made upon a hearing upon a motion, plaintiff appeals. Dismissed.
A. K. Little and Russell V. Johnson, for plaintiff in error.
Chas. Weaver and O. F. Mason, for defendant in error.
¶1 This is an appeal from the order of the district court of Ottawa county made and entered in an action wherein the plaintiff in error was plaintiff and the defendants in error were defendants.
¶2 The plaintiff in error, plaintiff below, to enforce payment of a deficiency judgment, caused execution to be issued and a levy made on certain lands in Ottawa county belonging to S. J. McCleery. The defendants in error S. J. McCleery and wife filed in the trial court their motion for release of property levied upon for the reason the property levied upon was the homestead of the defendants and not subject to sheriff's sale for the payment of said judgment. A hearing was had on the motion and an order entered on the 15th day of April, 1929, releasing said property from the levy so made thereon. No notice of appeal was given at the time of the making of this order or within 10 days thereafter. The plaintiff in error filed his motion for new trial, which was overruled on the 29th day of April, 1929, at which time notice of appeal was given.
¶3 The cause is now before the court on motion of plaintiff in error to determine the case. Defendants not having filed briefs, the plaintiff seeks a reversal of the judgment.
¶4 From an examination of the record in this cause, we find this court is without jurisdiction over the defendants in error. We therefore cannot reverse the judgment appealed from, for the reason no notice of appeal was given at the time the order was made or within 10 days thereafter. The defendants in error...
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Jones v. Norris
...by the parties or not. Wedd v. Gates (1905) 15 Okla. 602, 82 P. 808; Zahn v. Obert (1916) 60 Okla. 118, 159 P. 298; Hill v. McCleery (1930) 141 Okla. 205, 284 P. 646; Oklahoma City-Ada-Atoka Ry. Co. v. Parks (1938) 182 Okla. 598, 78 P.2d 791. It may be raised at any time prior to the issuan......
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Harjo v. Johnston
...time within which notice of intention to appeal must be given or the time within which a case-made must be served. Hill v. McCleery, 141 Okla. 205, 284 P. 646. ¶11 It is also apparent that the case-made was not served within 15 days after the making of said order nunc pro tunc or any valid ......
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Goldberg v. Goldberg
... ... Hill v. McCleery, 141 Okla. 205, 284 P. 646; Revard v. White, 139 Okla. 102, 281 P. 258. The plaintiff in error assigns as error the action of the trial ... ...
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Biser v. Biser
... ... It is the duty of this court to determine its jurisdiction upon its own motion. In the case of Hill v. McCleery, 141 Okla. 205, 284 P. 646, in the first paragraph of the syllabus, we held:"It is the bounden duty of the court to examine into its ... ...