52 P.2d 726 | Okla. | 1935
This controversy arose by virtue of the action of the Attorney General on the request of the Governor of the State, the Honorable W.J. Holloway, to liquidate certain trust funds. The action was filed in the district court of Oklahoma county, and after a decision thereon the case was appealed to this court and we reversed and remanded the cause, with directions in an opinion by Mr. Justice Osborn filed in this court on the 11th day of September, 1934. Security Bank Trust Co. v. Barnett,
A motion to dismiss has been filed by the defendant in error for the reason that the cause was not filed within six months from the date of the rendition of the judgment or order of December 7, 1934.
It appears therefore that if this cause comes within the rule announced by many cases of this court, that where an order or judgment is made upon a contested question of fact not arising upon the pleadings but upon motion, the filing and determination of a motion for new trial serves no purpose to extend the time in which a case can be filed in this court, then the cause must be dismissed. Powell v. Nichols,
The record does not bear out the statement of the plaintiff in error with relation thereto.
As stated above, the journal entry of judgment is dated December 7, 1934, and was filed in this court on the 8th day of December, 1934. The motion for new trial, which was filed December 10, 1934, states:
"Comes now the Producers National Bank, Tulsa, Okla., its directors and stockholders and move the court to vacate and set aside the judgment rendered herein on the 7th day of December, 1934, upon the motion of M.M. Thomas, for the allowance and payment of attorney fees to him. * * *"
Under the opinions of our court cited above and many others, it therefore conclusively appears from the record that judgment was entered upon motion of the defendant in error, and that said judgment was entered on the 7th day of December, 1934, and was acknowledged to have been so entered by the plaintiff in error herein. That is the fact that determines the jurisdiction of this court under the above decisions, and the fact that any pleading in the nature of a response that either party might think necessary was filed thereafter would serve no purpose to extend the jurisdictional power of this court. It is not contended that any order was thereafter made other than the order overruling motion for new trial from which the appeal was taken or notice of appeal given in open court.
It appearing therefore that the appeal was not taken within six months from the date of the rendition of the judgment, to wit, December 7, 1934, the cause must be dismissed, and it is so ordered.
McNEILL, C. J., and RILEY, BUSBY, CORN, and GIBSON, JJ., concur. *353