Protest of St. Louis-S. F. Ry. Co.

1933 OK 367, 22 P.2d 1035, 164 Okla. 63, 1933 Okla. LEXIS 757

Opinion

ANDREWS, J.

This is an attempted appeal from a judgment of the Court of Tax Review which was rendered on January 26. 1932, the journal entry of which was filed with the State Auditor on August 17, 1932. Notice of appeal was given under date of February 6, 1932. No petition, in error has been filed, although notice of the filing of the transcript in -this court was duly given under date of March 3, 1933.

The motion to dismiss was filed on March 27, 3933. Although this court has twice granted permission for the filing of a response thereto, no response has-been filed.

It is contended in the motion to dismiss that the time for the filing of a notice of appeal should run from the date of the judgment. That contention is in conflict with the provision of section 12310, O. S. 1931, which provides for written notice of appeal to be 'filed “within ten days after the filing of such decision of the court with the State Auditor.” The statute is controlling. We do not consider it necessary to discuss the reasons for the statutory provision. If the filing of the decision of the court with the State Auditor is delayed by one party, there is nothing to prevent the other party from causing it to be filed.

The general provision requiring an appeal to be perfected «within six months from the date of the final order appealed from is not applicable under the provisions of Initiative Petition No. 100. That law is complete unto itself. In re Magnolia Petroleum Co., 138 Okla. 205, 280 P. 574. It provides a complete method for appeal and, together with the rules of this court, the time within which such appeal must be perfected.

For the failure of the- plaintiff in error to file a petition in error, this appeal must bo dismissed under the rule stated in Re Magnolia Petroleum Co., supra; In re Faught’s Protest. 143 Okla. 96. 287 P. 997; In re Protest of Frick-Reid Supply Co. et al., 143 Okla. 96, 287 P. 996, and Protest of Chicago, R. I. & P. Ry. Co., 146 Okla. 23, 294 P. 169.

The appeal from the judgment of the Court of Tax Review is dismissed.

RILEY, C. J., CULLISON, V. O. J., and S WIND ALL, McNEILL, BUSBY, and WELCH, JJ., concur. OSBORN and BAY-LESS, JJ., absent.