Lusk v. Humble Oil & Ref. Co.
| Decision Date | 08 October 1929 |
| Docket Number | Case Number: 20554 |
| Citation | 140 Okla. 152,1929 OK 412,282 P. 311 |
| Parties | LUSK et al. v. HUMBLE OIL & REFINING CO. et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Appeal and Error--Time for Notice of Appeal and for Making and Serving Case-Made Where Trial on Agreed Statement--Motion for New Trial Unauthorized.
Where a cause is tried upon an agreed statement of all the ultimate facts, leaving for the court the sole question of the application of the law to such ultimate facts, a motion for new trial is unnecessary and unauthorized by statute, and the filing thereof does not extend the time in which notice of appeal may be given or in which to make and serve a case-made and the time in which to give notice of appeal and the time in which to make and serve a case-made runs from the date such judgment was rendered and not from the date of the overruling of such unnecessary and unauthorized motion.
2. Same--Errors Reviewable upon Exceptions to Judgment.
Where a cause is submitted upon an agreed statement of facts, the errors of the trial court, if any, in making application of law to the facts are reviewable in this court upon proper exceptions to the judgment.
3. Same--Necessity for Notice of Appeal Within Time.
Where the parties have failed to give notice of their intention to appeal within the time prescribed by law, this court is without jurisdiction to review the judgment of the trial court.
4. Same--Nullity of Case-Made not Served Within Time.
Where a case-made is not served within the time prescribed by law or a valid order of the trial court, such case-made is a nullity and brings nothing before this court for review.
Error from District Court, Carter County; Asa E. Walden, Judge.
Action by Mrs. Leonard E. Lusk, now Reed, et al. against the Humble Oil & Refining Company et al. From the judgment of the trial court in favor of the defendants, plaintiffs appeal. Dismissed.
Brett & Brett and John A Haste, for plaintiffs in error.
Brown & Williams, Earl Appleton Brown, Stephen A. George, and Sigler & Jackson, for defendants in error.
¶1 This is an appeal from a judgment of the district court of Carter county in an action wherein the plaintiffs in error were plaintiffs and the defendants in error were defendants.
¶2 The cause was submitted to the court on December 20, 1928, on an agreed statement of facts, covering all the facts submitted, filed in the cause on October 20, 1928. The cause was taken under advisement until February 15, 1929, at which time judgment was rendered for the defendants, to which the plaintiffs excepted. No notice of appeal was given at the time of the rendition of judgment or within 10 days thereafter, and no order made at the time the judgment was rendered or within 10 days thereafter extending the time in which to make and serve case-made. On February 16, 1929, the plaintiffs filed their motion for new trial, which motion was on April 12, 1929, overruled. Upon the overruling of the motion for new trial, plaintiffs gave notice of appeal and were given 30 days in which to make and serve case-made.
¶3 The defendants have filed herein their motion to dismiss the appeal upon the grounds no notice of appeal was given at the time the judgment was rendered or within 10 days thereafter, and that the case-made was not served within the time allowed by law or a valid order of the court extending the time therefor. It is the contention of the defendants in error that a motion for new trial was unnecessary, and the filing thereof did not extend the time in which notice of appeal could be given or in which to make and serve case-made.
¶4 This court has in a number of cases held that where a cause is tried upon an agreed statement of all the ultimate facts, leaving for the court the sole question of the application of the law to such ultimate facts, a motion for new trial is unnecessary and unauthorized by statute. Showalter v. Hampton, 122 Okla. 192, 253 P. 105; Landers v. Bank of Commerce of Okmulgee, 106 Okla. 59, 233 P. 200; Durant v. Nesbit, 59 Okla. 11, 157 P. 353; Dunlap v. C. T. Herring Lumber Co., 44 Okla. 475, 145 P. 374; School District No. 38 v. Mackey, 44 Okla. 408, 144 P. 1032; Chicago, R. I. & P. Ry. Co. v. City of Shawnee, 39 Okla. 728, 136 P. 591. In the case of Henry v. McBride, 102 Okla. 41, 225 P. 906, this court said:
"This court has uniformly held that a motion for new trial is not necessary in order to enable it to review a judgment of the trial court rendered upon an agreed statement of fact."
¶5 The motion for new trial, being unnecessary and unauthorized by the statute, does not extend the time in which the notice of appeal may be given or in which the case-made may be served. In the case of Landers v. Bank of Commerce of Okmulgee, supra, this court announced the rule that where a cause is tried upon in agreed statement of all the ultimate facts, leaving for the court the sole question of application of the law to such ultimate facts, a motion for new trial is unnecessary and unauthorized by statute and does not extend the time in which the appeal must be perfected in the Supreme Court, and the time for perfecting such appeal runs from the date the judgment is rendered and not from the date of the overruling of such unnecessary and unauthorized motion. This rule is followed in the case of Showalter v. Hamilton, supra, and in the case of In re Baptiste's Guardianship, 125 Okla. 184, 256 P. 520, this court approved the rule laid down in Ginn v. Knight, 106 Okla. 4, 232 P. 936, that where the filing of a motion for new trial is unauthorized, it would not extend the time in which to make and serve case-made. And in the case of Crawford v. Shintaffer, 92 Okla. 22, 217 P. 867, this court announced the rule that where a motion for new trial is not necessary to present a question for review, the time for giving notice of appeal runs from the date of the rendition of the judgment and not from the date of the order overruling the motion for new trial, and in the same case this court held that where the parties failed to give notice within the time prescribed by statute of their intention to appeal, this court is without jurisdiction to review the judgment of the trial court, such attempted appeal is a nullity, and the cause will be dismissed. This rule applies equally to the time in which to serve case-made as well as to the time in which notice of appeal may be given, and the case-made in this action was not served on the defendants in error until the 9th day of May, 1929, long after the 15 days allowed by law in which to make and serve case-made had expired.
¶6 The plaintiffs in error...
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