Roberts v. Sims

• Decision Date: 21 October 1924
• Docket Number: 14846.
• Citation: 237 P. 852,111 Okla. 1,1924 OK 959
• Parties: ROBERTS v. SIMS et al.
• Court: Oklahoma Supreme Court

237 P. 852

111 Okla. 1, 1924 OK 959

ROBERTS v. SIMS et al.

No. 14846.

Supreme Court of Oklahoma

October 21, 1924

Rehearing Granted June 23, 1925.

Syllabus by the Court.

A motion for a new trial, for errors of law occurring at the trial, filed more than three days after the verdict was rendered, is a nullity, unless it is made to appear that its filing within three days was unavoidably prevented.

Where the moving party deposits a motion for new trial in the post office for delivery by registered mail, and the motion is not received by the court clerk until the fourth day after the verdict was rendered, he cannot avail himself of the plea of unavoidable delay.

Commissioners' Opinion, Division No. 1.

Appeal from District Court, Rogers County; A. C. Brewster, Judge.

Action by Opal Sims and another against Mike Roberts. Judgment for plaintiffs, and defendant appeals. Affirmed and judgment entered against sureties on the supersedeas bond.

E. J Raymond, of Nowata, and Geo. B. Schwabe, of Tulsa, for plaintiff in error.

Jennings Hall & Battenfield, of Claremore, for defendants in error.

RAY, C.

The errors assigned are not preserved in the record by motion for new trial. The motion for new trial was filed the fourth day after the verdict was rendered. Section 574, C. 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."

The motion for new trial was not for newly discovered evidence but it is contended that defendant was unavoidably prevented from filing it within three days after the verdict was rendered. The verdict was returned April 20, 1923. The motion for new trial was filed April 24, 1923. At the time the motion for new trial came on to be heard, the parties entered into the following stipulation:

"It is stipulated and agreed by the plaintiffs and defendant that a motion for new trial by the defendant in this case was prepared on Saturday, the 21st day of April, A. D. 1923, in the offices of counsel for the defendant at Nowata, Okl., and by counsel for the defendant deposited in the United States mails, by registered mail, in the post office in Nowata, Okl., on Saturday, the 21st day of April 1923, addressed to A. V. Robinson, court clerk, at Claremore, Okl., and that said motion for new trial was properly inclosed in an envelope so addressed, with first class postage fully prepaid thereon, and was received at the post office in Claremore, Okl., on a subsequent date, but that the court clerk, to whom the said motion was so addressed, was not notified that said registered mail was at the post office for him until on Tuesday, the 24th day of April, 1923; that the defendant endeavored in this manner and by these means to get his motion for new trial on file within the three days provided by the statute."

Upon this statement of facts the trial court held that the defendant was unavoidably prevented from filing the motion within three days after the verdict was returned. We cannot agree with that conclusion. When the defendant deposited the motion for new trial in the United States mail, he thereby selected the postal department as his agency for delivery. In sending it by registered mail he designated the particular method for its delivery. No showing was made that it could not in some other way have been delivered within the three days fixed by the statute. This court has held that the provision of the statute requiring the motion for new trial to be filed in three days after the verdict is returned is mandatory, and in the absence of a showing that the party filing it has been unavoidably prevented from filing it within the time specified in the statute, this court cannot consider it or review the errors occurring at the trial. Roberts et al. v. Seals, 43 Okl. 467, 143 P. 199; Western Coal & Mining Co. v. Tulloss, 43 Okl. 298, 142 P. 1035; Farmers' Grain & Supply Co. v. Isaac, 60 Okl. 26, 158 P. 562.

The record being certified as a transcript brings here for consideration the ruling of the court upon defendant's demurrer to plaintiffs' petition, if that question is preserved in the record. The demurrer was overruled December 9, 1921. The petition in error was filed in this court November 1, 1923. No motion for new trial was filed in the time required by the statute. The motion for new trial, which was filed out of time, did not include the court's ruling upon the demurrer to the petition as one of the grounds for a new trial.

In the syllabus in the case of Aultman & Taylor Machinery Co. v. Fuss, 86 Okl. 168, 207 P. 308, it is said:

"When a defendant desires to present to this court as error the overruling of a demurrer to

the petition, it may be presented by two methods: First saving the proper exception, and having the appeal lodged in this court within six months from the date of the order; second, by saving the proper exception and incorporating in the motion for new trial the error of

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