Wade v. Hope & Killingsworth

1919 OK 300, 186 P. 235, 77 Okla. 62, 1919 Okla. LEXIS 255

• Court: Supreme Court of Oklahoma
• Decided: October 21, 1919
• Docket: No 10868
• Status: Published

Opinion

OWEN, C. J.

From a judgment in favor of Hope & Killingsworth, entered October 15, 1915, Wade prosecuted error to this court, and his appeal was dismissed (65 Oklahoma, 162 Pac. 742). He filed an application in the trial court for new trial, and from a judgment denying that application he again appealed to this court, where the judgment of the lower court was affirmed (74 Oklahoma, 176 Pac. 402), for the.reason that his application was not filed within one year after final judgment was rendered in the trial court. He then filed a motion to vacate the order overruling his motion for' new trial. Upon consideration of this motion, and after permitting the introduction of evidence and argument of counsel, the trial court refused to' grant the relief prayed and sustained a motion by defendants in error to strike Wade’s motion from the files. From that judgment this appeal is prosecuted.

A motion to vacate an order overruling motion for new trial can serve no purpose but to take the place of an application or petition for new trial, and does not have the effect of extending the time in which the trial court may reconsider its order denying a motion for new trial beyond the term at which the same was made, as provided bv section 5035, Rev. Laws 1910, or to extend the time in which a petition for new trial may be filed under the provisions of section 5037, of this statute, which requires same to be filed within one year from the date of the final judgment. Owen v. Dist. Ct. of Okla. Co., 43 Okla. 442, 143 Pac. 17; Continental Gin Co. v. Arnold, 66 Oklahoma, 167 Pac. 613; Dorland v. Cunningham, 66 Cal. 484, 6 Pac. 135.

The appeal, therefore, is dismissed.

RAINEY, PITCHFORD, McNEILL, and HIGGINS, JJ.; concur.