Jarvis v. Great Bend Oil Co.

1915 OK 764, 152 P. 372, 49 Okla. 175, 1915 Okla. LEXIS 26

• Court: Supreme Court of Oklahoma
• Decided: October 12, 1915
• Docket: 7013
• Status: Published

Opinion

TURNER, J.

The motion for new trial in this case was not filed within three days after the filing of the report of the referee, but was filed within three days after the referee’s report was approved by the court. The referee had under consideration the entire issues in the «case. The only question is whether we shall follow the case of First National Bank v. Oklahoma National Bank, 29 Okla. 411, 118 Pac. 574, Dunn, J., holding that the motion must be filed within three days after the filing of the report, • or whether Revised Laws 1910, section 5033, as amended by the Code Commission, changed the law to make it in time when the motion for new trial is filed within three days after the approval of the report of the referee.

At the time Dunn, J., wrote the opinion in the above-entitled cause, the Code (Comp. Laws 1909, section 5825) read:

“A new trial is a re-examjination, in the same court, of an issue of fact, after a verdict by a jury, report of a referee, or a decision by the court.”

But along came the Code Commission and amended the statutes so as to read:

“A new trial is a re-examination in the same court,of an issue of fact, after a verdict by a jury, the approval ¡of the report of a referee, or a decision by the court.”

It is the opinion of the court that under the statute as amended a motion for a new trial filed within three days after “the approval of the report of a referee” is sufficient.

The motion to dismiss is overruled.

All the Justices concur.