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Chicago, R. I. & P. Ry. Co. v. City of Shawnee

Chicago, R. I. & P. Ry. Co. v. City of Shawnee, 1913 OK 647, 136 P. 591
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Court
Supreme Court of Oklahoma · State Highest Courts
Decided
November 18, 1913
Docket
No. 3051
Judges
Thacker
Citations
136 P. 5911913 OK 64739 Okla. 7281913 Okla. LEXIS 576
Disposition
Dismissed.
Syllabus
1. APPEAL AND ERROR — Time for Appeal — Unauthorized Motion for New Trial. Where case is tried upon an agreed statement, which eliminates all questions of fact, a motion for new trial is unauthorized by statute; and the time for making and serving a case for this court runs from the date of the judgment, unaffected by such motion or the order overruling the same. 2. SAME — Extension. An order made extending the time and a ease-made served in accord therewith after the expiration of the time specifically given by statute, in which to make and serve a case, are nullities; and a petition in error with sueli case-made attached gives this court no jurisdiction. (Syllabus by Thacker, 0.)
Summary
'Error from Superior Court, Pottawatomie County; George C. Abernathy, Judge. Action by the City of Shawnee against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Thacker

*729 Opinion by THACKER, C.

This case was tried upon an agreed statement of facts, judgment was entered on August 19, 1911, motion for new trial was filed on August 22, 1911, and on September 2, 1911, the motion for new trial was overruled and an order entered purporting to extend the time in which case for this court might be made and served to September 7, 1911. On September 6, 1911, case-made was served, settled, and signed; and the jurisdiction of this court depends upon whether this order of September 2, 1911, was within the three days specifically allowed by statute (section 4444, St. Okla. 1893, now changed by section 5242, Rev. Laws 1910, to 15 days) within which a case might be made and served; and this question, in turn, depends upon whether the appeal should have been from the judgment of from the order overruling the motion for new trial, which, in turn, depends upon whether a motion for new trial is authorized by the statute when all questions of fact have been eliminated by agreed statement of facts These questions seem to be definitely settled by the decisions of this court; and it thus appears: (1) That a motion for new trial is unauthorized in such cases, and the appeal should have been from the judgment (Board of County Commissioners of Garfield County v. Porter et al., 19 Okla. 173 , 92 Pac. 152 ;

Schnitsler v. Green, 5 Kan. App. 656 , 47 Pac. 990 ;

Ritchie et al. v. Kansas N. & D. Ry., 55 Kan. 36 , 39 Pac. 718 ); and (2) that, the time within which to make and serve a case having expired on the expiration of the third day after such judgment without order extending the same, the case-made was not served in time, and this court has not acquired jurisdiction.

Boulanger v. Midland Valley Mercantile Co., 36 Okla. 120 , 128 Pac. 113 ;

Reed v. Woolly, 31 Okla. 783 , 123 Pac. 1121 ;

Doorley v. Buford & George Mfg. Co., 5 Okla. 594 , 49 Pac. 936 ;

Williams v. New State Bank, 38 Okla. 328 , 132 Pac. 1087 ;

American Nat. Bank of McAlester et al. v. Mergenthaler Linotype Co., 31 Okla. 533 , 122 Pac. 507 .

The appeal should be dismissed.

By the Court: It is so ordered.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 10 cases

View all citing references →
1913: 11914: 31915: 11916: 21924: 11929: 11932: 119132026peak 1914 · 3

Relies on it most ⓘ

  1. Veverka v. Frank1913 OK 735, 137 P. 682
  2. Wentz v. Thomas1932 OK 636, 15 P.2d 65 · Concurrence
  3. Garland v. Union Trust Co.1916 OK 24, 154 P. 676
  4. School Dist. No. 38 v. MacKey, County Treasurer1914 OK 626, 144 P. 1032
  5. Durant v. Nesbit1916 OK 512, 157 P. 353
  6. Jones v. Fearnow1915 OK 449, 149 P. 1138

Most recent

  1. Wentz v. Thomas1932 OK 636, 15 P.2d 65 · Concurrence
  2. Lusk v. Humble Oil & Refining Co.1929 OK 412, 282 P. 311
  3. Henry v. McBride1924 OK 353, 225 P. 906
  4. Durant v. Nesbit1916 OK 512, 157 P. 353
  5. Garland v. Union Trust Co.1916 OK 24, 154 P. 676
  6. Jones v. Fearnow1915 OK 449, 149 P. 1138

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 9

DepthCaseCited by
Bd. of Cnty. Comm'rs of Garfield v. Porter, 1907 OK 98, 92 P. 152 29
Am. Nat. Bank of McAlester v. Mergenthaler Linotype, 1912 OK 157, 122 P. 507 29
Doorley v. Buford & George Mfg. Co., 49 P. 936 (Okla. 1897) 26
Schnitzler v. Green, 47 P. 990 (Kan. Ct. App. 1897) 7
Reed v. Woolly, 1912 OK 402, 123 P. 1121 6
Boulanger v. Midland Valley Mercantile Co., 1912 OK 714, 128 P. 113 4
Ritchie v. Kan., Neb. & Dakota Ry. Co., 55 Kan. 36 (1895) 47
Milam v. Smith-Mauer Bros., 1913 OK 385, 133 P. 33 7
Williams v. New State Bank, 1913 OK 396, 132 P. 1087 4

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