291 P. 965 | Okla. | 1930
This is an appeal from the order of the district court of Grady county made and entered on the 17th day of October, 1929, authorizing and directing the sheriff to amend the return on the summons served in the action to speak the truth and denying plaintiffs in error's motion to vacate the judgment previously rendered in said cause upon the grounds no summons had ever been served upon them.
Motion for new trial was filed October 19, 1929, and overruled January 2, 1930. Petition in error with case-made attached was filed in this court June 27, 1930. The *37 defendant in error has filed in this court its motion to dismiss the appeal upon jurisdictional grounds, alleging the appeal was not filed within the time allowed by law, and urges that the filing and determination of a motion for a new trial in this cause is unnecessary and did not extend the time in which to file the appeal in this court.
The filing and determination of a motion for new trial upon a contested question of fact not arising upon the pleadings, but upon motion, is unnecessary to authorize this court to review an order made upon such hearing, and the filing thereof does not extend the time in which to commence a proceeding in error in this court. Ginn v. Knight,
Under the rule above stated and long followed by this court, the motion for new trial filed by the plaintiffs in error was unnecessary and did not extend the time in which to commence proceedings in error, and for the reason the appeal was not filed in this court within six months from the date of the order sought to have reviewed the appeal is dismissed.