This action comes on to be heard upon motion to dismiss appeal filed by the defendant in error. The case was tried in the court below on a motion for judgment on the pleadings, which was sustained, and judgment entered for defendant in error.
Plaintiff in error filed a motion for a new trial, which was overruled, and from this action plaintiff in error appealed to the Supreme Court. No notice of appeal was given at the time judgment was rendered on the pleadings, July 2, 1921, nor within ten days thereafter, and from this judgment no appeal was taken.
It is well settled that when judgment is rendered on the pleadings no motion for a new trial is necessary, and error assigned because of the overruling thereof presents nothing for review. Schuler et al. v. McDuffee et al.,
In the case at bar, the only error assigned is the overruling of the motion for a new trial. Motion for a new trial being unnecessary, and no notice of appeal from the judgment on pleadings having been given, it follows that the motion to dismiss the appeal must be sustained.
HARRISON, C. J., and JOHNSON, McNEILL, MILLER, KENNAMER, and NICHOLSON, JJ., concur.