Opinion
No. 25965
December 18, 1934.
(Syllabus)
Appeal and Error — Failure to Comply With Statute as to Notice of Appeal — Dismissal.
Section 531, O. S. 1931, is mandatory and among other things provides that the party desiring to appeal shall give notice in open court either at the time the judgment is rendered or within 10 days thereafter of his intention to appeal to the Supreme Court, and an attempted appeal not in conformity with the provisions of the statute will be dismissed.
Appeal from District Court, Jackson County; Frank Mathews, Judge.
Action by Sallie L. Reid, administratrix of estate of Wm. L. Reid, against J. D. Blackmon in forcible entry and detainer. Upon appeal from a judgment for plaintiff in a justice of the peace court and a trial de novo, judgment for plaintiff, and defendant appeals. Dismissed.
Morrill Snodgrass and L. B. Yates, for plaintiff in error.
L. A. Pelley and W. C. Austin, for defendant in error.
On the 27th day of April, 1934, the plaintiff obtained a judgment in the district court, and on October 26, 1934, the proceedings in this court were commenced by the filing of a purported transcript of the record with petition in error attached. The record does not show that a motion for new trial was filed and passed upon, although the purported transcript contains a copy of a motion for new trial. The same is no part of the record and cannot be reviewed by this court except upon proper presentation in a case-made or by bill of exceptions. Chase v. Byrnes, 147 Okla. 118, 294 P. 786; In re Welfelt's Estate, 142 Okla. 110, 285 P. 843; Brigham v. Davis, 126 Okla. 90, 258 P. 740; Schollmeyer v. Van Buskirk, 35 Okla. 439, 130 P. 138; Richardson v. Beidleman, 33 Okla. 463, 126 P. 818.
It does not appear anywhere in the record that a notice of appeal was ever given in open court at the time of the rendition of the judgment, the order of the court overruling the motion for new trial or within 10 days thereafter, and in the absence of proper notice of appeal this court is without jurisdiction to review the action of the trial court. Smith v. Morris, 166 Okla. 285, 27 P.2d 631. The appeal is therefore dismissed.