Stokes v. State
| Decision Date | 05 October 1965 |
| Docket Number | No. 41310,41310 |
| Citation | 410 P.2d 59,1965 OK 155 |
| Parties | Ben H. STOKES, Bail Bondsman for S. E. Powell, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
By the terms of 12 O.S.Supp.1963, § 651, a motion for new trial became necessary and required in every case in order to preserve for review the errors in determining issues of fact and of law, whether such issues arose upon the pleadings or were raised by motion.
Appeal from the District Court of Jefferson County; Arthur J. Marmaduke, Judge.
Appeal by surety from trial court's decision declining to set aside a prior order forfeiting bail in a felony case; surety who failed to move for new trial, lodged this appeal directly from the adverse decision. Appeal dismissed.
James F. Lane, Beaver, Sullivan & Sullivan, Duncan, for plaintiff in error.
James Harley Ivy, County Atty., Waurika, for defendant in error.
This is an appeal by case made from trial court's decision declining to set aside its prior order forfeiting bail in a felony case. The ancillary proceeding for relief from the forfeiture, instituted below by the surety, was prosecuted by motion and amended motion filed in conformity with the applicable procedure prescribed by 22 O.S.1961, § 1108 and 12 O.S.1961, § 1031, subdiv. 7. After the adverse decision the surety did not move for a new trial but lodged this appeal directly from the order of September 9, 1964, denying his motions to set aside the bail forfeiture. Acting on its own initiative, this Court directed the surety to show cause why the present appeal should not be dismissed because under the 1963 amendment to 12 O.S.1961, § 651, the errors sought to be assigned should have been preserved for review by motion for new trial. Responding to that order, the surety asserts that this appeal remains totally unaffected by the cited amendment, and a motion for new trial was hence unauthorized and unnecessary to present for review the assignments made; in the alternative, the surety argues that if the Court determine otherwise its decision should be accorded prospective effect only.
The instant case presents for our construction the provisions of H.B. 562 S.L.1963 p. 326, 12 O.S.Supp.1963, § 651. This statute redefined new trial as a '* * * re-examination in the same court, of an issue of fact, or law, either or both, after a verdict by a jury, the approval of the report of a referee, or a decision by the court. * * *.' By the terms of this enactment, which added to the section the five italicized words '* * * or law, either or both, * * *', a re-examination of an 'issue of law' became included in the statutory definition of a new trial. Before that amendment new trial, within the meaning of the statute, constituted and was confined to a re-examination of an issue of fact.
An issue of fact, as defined by the Code of Civil Procedure, 12 O.S.1961, § 554, arises when material allegations in the petition, answer or reply stand controverted or may be considered as controverted in one of these instruments which are denominated by 12 O.S.1961, § 263 as pleadings. Before the amendment here under consideration, it was uniformly held that an issue of fact can 'arise only upon pleadings'. Since a motion is not defined as a pleading in Sec. 263, supra, but is classed in 12 O.S.1961, § 1110 as an 'application for an order', no decision 'on an issue of fact arising upon pleadings' is rendered in determining a motion. There was no authority in our Code for new trial of a motion. If reconsideration of a ruling made thereon was sought or desired, the proper practice was to renew the motion. Harper v. Hildreth, 99 Cal. 265, 33 P. 1103, 1105; State ex rel. Heinze v. District Court et al., 28 Mont. 227, 72 P. 613, 616; McDermott v. Halleck, 65 Kan. 403, 69 P. 335; Dreese v. Myers, 52 Kan. 126, 34 P. 349, 350.
From this construction of the Code of Civil Procedure, based largely on the technical common-law concepts of an 'issue', 3 Blackstone Commentaries, 314, 315, the rule developed in Oklahoma shortly after statehood, that 'the filing and determination of a motion for a new trial of a contested question of fact not arising upon the pleadings, but arising upon a motion, is unnecessary to authorize the [Supreme] court to review the order made upon such hearing'. Powell et al. v. Nichols et al., 26 Okl. 734, 110 P. 762, 29 L.R.A.,N.S., 886; Oxford v. State, 80 Okl. 103, 194 P. 101; Burdick on New Trials and...
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