SUDIK v. SPAETH

SUDIK v. SPAETH
1954 OK 291
276 P.2d 237
Case Number: 36461
Decided: 11/03/1954
Supreme Court of Oklahoma

HERBERT SUDIK, ZULA MARIE SUDIK, W.T. TUNDERBURK, SURVIVING PARTNER, D/B/A GILLILAND LAND COMPANY, PLAINTIFFS IN ERROR,
v.
ERVIN F. SPAETH, VAUGHN X. SPAETH, PAUL L. SPAETH, ERVIN L. SPAETH, JAMES N. SPAETH, ROY M. HEFFLEY AND THE FIRST NATIONAL BANK AND TRUST COMPANY, A CORPORATION, DEFENDANTS IN ERROR.

Syllabus by the Court

¶0 Where judgment is rendered upon the pleadings and opening statement of counsel, the filing and determination of a motion for new trial serves no purpose to extend the time in which the appeal may be filed past the six months from the rendition of the judgment upon said pleadings and opening statement.

Appeal from the District Court of Oklahoma County, W.A. Carlile, J.

Renegar & Renegar, Oklahoma City, for plaintiffs in error.

Washington, Thompson & Wheeler, Oklahoma City, for defendants in error.

WILLIAMS, J.

¶1 Plaintiffs brought an action on a contract and on trial to the court the defendants Ervin F. Spaeth et al., moved for a judgment on the pleadings and opening statement of counsel. This motion was granted and judgment entered for defendants as prayed for in the motion.

¶2 Plaintiffs filed a motion for new trial and attempt to appeal from the order overruling the same. It is conceded that if the appeal is not properly perfected from the order overruling the motion for new trial the motion should be sustained.

¶3 The appeal must be dismissed under the rule announced in Dickson v. Minneapolis Threshing Machine Co., 174 Okl. 335, 50 P.2d 335. Therein it is stated:

"Where judgment is rendered upon the pleadings and opening statement of counsel, the filing and determination of a motion for new trial serves no purpose to extend the time in which the appeal may be filed past the six months from the rendition of the judgment upon said pleadings and opening statement."

¶4 See, also, Koury v. Vogel, 191 Okl. 374, 130 P.2d 93, and cases therein cited.

¶5 Appeal dismissed.

¶6 HALLEY, C.J., JOHNSON, V.C.J., and WELCH, CORN, DAVISON, ARNOLD and BLACKBIRD, JJ., concur.