40 P.2d 678 | Okla. | 1935
In this action the plaintiff in error H. H. Hoppe, July 3, 1930, secured a judgment against the defendant in error, Bentley et al., quieting his tax title to lots 35 and 36, block 7, Carney Heights addition to Oklahoma City, Okla.
April 23, 1931, Bentley filed a motion to vacate the judgment, which motion January 23, 1932, was sustained and an order made vacating the judgment. Hoppe excepted and gave notice of appeal.
The record and evidence establish that at the date of the tax deed J. "W." Bentley owned the lots, and that this motion was based upon section 189, O. S. 1931, and that the action by Hoppe was against J. "W." Bentley in the name of J. "N." Bentley, his name so appearing in the recorded deed. It is clear that Hoppe brought his action against the grantee in the deed and that was J. W. Bentley.
Plaintiff in error, January 25, 1932, filed a motion for new trial of the order vacating the judgment, which was overruled January 29, 1932, notice of appeal given, time granted and extended to make and serve case-made, and the appeal filed in the Supreme Court July 27, 1932, four days after the expiration of six months from the date of the order vacating the judgment quieting title.
The motion for new trial was unauthorized upon the proceedings here involved, and the order thereon did not fix the date from which to calculate the time to appeal. Fliedner v. Hinchee,
The appeal not having been taken within six months from the rendition of the order appealed from, this court acquired no jurisdiction of the appeal, and, therefore, the appeal should be and hereby is dismissed.
The Supreme Court acknowledges the aid of Attorneys James S. Arnote, Chas. H. Hudson, and Chas. R. Freeman in the preparation of this opinion. These attorneys constituted an advisory committee selected by the State Bar, appointed by the Judicial Council, and approved by the Supreme Court. After the analysis of law and facts was prepared by Mr. James S. Arnote, and approved by Mr. Chas. H. Hudson and Mr. Chas. R. Freeman, the cause was assigned to a justice of this court for examination and report to the court. Thereafter, upon consideration by a majority of the court, this opinion was adopted.