Larkin v. Barker

• Decision Date: 30 October 1928
• Docket Number: Case Number: 19503
• Citation: 1928 OK 636,272 P. 882,134 Okla. 46
• Parties: LARKIN v. BARKER.
• Court: Oklahoma Supreme Court

1928 OK 636

272 P. 882

134 Okla. 46

LARKIN v. BARKER.

Case Number: 19503

Supreme Court of Oklahoma

Decided: October 30, 1928

Syllabus

¶0 1. Appeal and Error--Where Motion for New Trial Filed After Term, Question Whether Judgment Contrary to Law and Evidence not Reviewable.

The syllabus in the case of Bush v. Clay, 129 Okla. 272, 264 P. 821, is hereby adopted as syllabus 1 in this case.

2. Appeal and Error--Review--Necessity for Exceptions in Trial Court.

Errors alleged to have occurred in the lower court, unless the same are excepted to, will not be considered on appeal in the Supreme Court.

M. E. Michaelson, for plaintiff in error.

Norman Barker, for defendant in error.

PER CURIAM.

¶1 This is an appeal from the judgment of the district court of Washington county rendered on the 31st day of December, 1927. A motion for new trial was filed on the 3rd day of January, 1928. The defendant in error has filed her motion to dismiss the appeal in this court, setting forth three grounds for dismissal, but we deem it unnecessary to notice but one of these grounds, and that is, that the motion for new trial was not filed in the trial court during the term of court in which the judgment was rendered. "Section 3072, C. O. S. 1921, provides:

"The time for convening the regular terms of the district court in each county in the several district court judicial districts of the state shall be on the first Monday in each of the respective months hereinafter set out in this section after each of the respective counties to wit; * * * District No. 30, Washington county, in January, May and September."

¶2 The January term of the district court of Washington county begins on the first Monday in January, 1928, which day in the year 1928 was January 2nd, the day before the motion for new trial was filed in the trial court in this cause. The term of court in which the judgment was rendered on the 31st day of December, 1927, had expired, therefore, the motion for new trial was not filed during the term of court in which the judgment was rendered. Section 574, C. O. S. 1921, provides:

"The application for a new trial must be made at the term the verdict, report or decision is rendered, and except for the cause of newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial, or impossibility of making a case-made, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented."

¶3 The grounds in the motion for new trial filed in the trial court do not come within the exceptions enumerated in the foregoing section. This same question was before the court in the case of Bush v. Clay, 129 Okla. 272, 264 P. 821, and also the case of Muse v. Harris, 122 Okla. 250, 254 P. 72, wherein, under the same condition of the record as the case at bar, this court laid down the rule that:

"A motion for a new trial upon the grounds that the judgment is not sustained by evidence, is contrary to law, and for errors of law occurring at the trial and excepted to by the parties complaining, must be filed during the same term the judgment is rendered. If the motion for a new trial for such reasons is not filed until after the term has ended and the court has finally adjourned, the Supreme Court cannot consider or review the errors alleged in the motion."

¶4 In the body of the opinion in the case of Muse v. Harris, supra, the court said:

"As a motion for new trial was not filed during the term of the trial court at which the judgment was rendered as prescribed by section 3072, supra, we cannot consider or review the errors alleged in the motion for new trial, or in the petition in error, which presents substantially the same grounds of error."

¶5 The record in this case is certified to by the court clerk as a transcript, and the plaintiff in error in his response to the motion to dismiss filed in this court contends that at least two of the specifications of error contained in petition in error may be reviewed on transcript and the errors therein alleged appear upon the judgment roll and that by reason thereof no motion for new trial was necessary to enable this...