Opinion
No. 7190
Opinion Filed April 6, 1915.
1. APPEAL AND ERROR — Proceedings in Error — Time for Commencing. Under section 1, c. 18, Sess. Laws 1910-11, proceedings in error in this court must be commenced within six months from the date of the rendition of the judgment appealed from.
2. APPEAL AND ERROR — Decisions Appealable — Final Judgment — Dismissal. Where the record discloses no final judgment, there is nothing upon which to base an appeal to this court, and an attempted appeal upon a record which fails to show a final judgment will be dismissed.
(Syllabus by the Court.)
Error from County Court, Cherokee County; E. C. McMichael, Judge.
Action by Ranney-Davis Mercantile Company against Boorigie Bros. Judgment for plaintiff, and defendants bring error. Appeal dismissed.
J. D. Cox, for plaintiffs in error.
Burkhead Foreman, for defendant in error.
This is an appeal from a judgment rendered by the county court of Cherokee county. The defendant in error has filed motion to dismiss the appeal on various grounds, among which is that the petition in error was not filed in this court within six months from the date of rendition of the judgment appealed from. An examination of the record discloses that the only judgment shown therein was rendered April 16, 1914. On the following page of the record appears a motion for new trial, which also bears no filing mark of any kind, and nowhere in the record appears any order of the court acting on said motion.
The judgment rendered on April 16, 1914, as aforesaid, is evidently the judgment upon which this appeal is based. The petition in error herein was filed in this court March 2, 1915, practically ten months after the rendition of said judgment, and under section 1, c. 18, Sess. Laws 1910-11, the time for filing proceedings in error in this court is limited to six months from the rendition of the judgment appealed from.
The appeal will have to be dismissed on the ground that the petition in error was not filed in this court within the time allowed by law if the judgment of April 16, 1914, is the judgment appealed from; and if the motion for new trial shown in the record was filed and not acted upon, then there is no final judgment upon which to base this appeal, and the same would, in that event, have to be dismissed.
For the reason stated the appeal is dismissed.
All the Justices concur, except KANE, C. J., not participating.