Opinion
No. 17699
Opinion Filed December 14, 1926.
(Syllabus.)
1. Appeal and Error — Filing Cross-Petition in Error as "Commencement of a Proceeding in Error."
The filing of a cross-petition in error, attached to a transcript or case-made previously filed in the Supreme Court to reverse or modify the judgment or final order of the trial court, is the commencement of a proceeding in error in the Supreme Court at the instance of the party filing cross-petition in error.
2. Same — Dismissal of Cross-Appeal Where Cross-Petition in Error not Filed Within Six Months.
Where a cross-petition in error is not filed in this court until after the expiration of six months from the date of the final judgment or order complained of, this court has no jurisdiction over the subject-matter and the cross-appeal will be dismissed.
Error from District Court, Rogers County; C. H. Baskin, Judge.
From the judgment of the trial court in favor of R.I. Bilby et al., J. Ed Bilby appealed, and from the judgment of the trial court in favor of plaintiff in error against Eva Bilby, she files cross-petition in error. Cross-petition in error dismissed.
J. S. Severson and Neal E. McNeill, for plaintiff in error.
L. S. Robson, for cross-petitioner in error.
Judgment was rendered in the trial court in favor of R.I. Bilby et al. against plaintiff in error, J. Ed Bilby, and in favor of the plaintiff in error, J. Ed Bilby, against defendant in error Eva Bilby, on the 8th day of February, 1925. Separate motions for new trial were filed by J. Ed Bilby and Eva Bilby. The motion for new trial of plaintiff in error, J. Ed Bilby, was overruled on the 15th day of February, 1926, and the motion for new trial of Eva Bilby was overruled by the trial court on March 8, 1926.
Petition in error of plaintiff in error, J. Ed Bilby, with case-made attached, was filed in this court August 13, 1926. The cross-petition of Eva Bilby was filed and attached to case-made in this court on the 29th day of September, 1926. The plaintiff in error, J. Ed Bilby, now moves this court to dismiss the cross-petition of the defendant in error Eva Bilby, for the reason that said cross-petition in error was not filed in this court within six months from the date of the order overruling her motion for a new trial, March 8, 1926.
The filing of a cross-petition in error attached to case-made previously filed in the Supreme Court to reverse or modify the judgment or final order of the trial court is the commencement of a proceeding in error in the Supreme Court at the instance of the party filing the cross-petition in error. Title Guaranty Surety Co. v. Foster, 84 Okla. 291, 203 P. 231.
Section 798, Comp. Stats. 1921, provides that "all proceedings for reversing* * * judgments or final orders shall be commenced within six months from the rendition of the judgment or final order complained of." Since the cross-petition in error was not filed in this court until September 29, 1926, and the six months from the date of the order overruling the motion for new trial having expired on September 8, 1926, this court has no jurisdiction to review the judgment sought to be reversed. Gilmore v. Smith et al., 93 Okla. 4, 219 P. 92, and cases therein cited.
The motion to dismiss cross-petition in error is sustained, and said cross-petition in error is hereby dismissed.