Opinion
No. 27478.
January 9, 1937.
(Syllabus.)
Appeal and Error — Dismissal for Delay in Perfecting Appeal — Motion for New Trial Unnecessary to Review Ruling on Motion to Confirm Sale and not Effective to Extend Time for Appeal.
The filing and determination of a motion for new trial is unnecessary to review the errors alleged to have occurred in sustaining or overruling a motion to confirm sale; and a petition in error and case-made which is not filed in this court until after six months from the date of the order entered by the trial court is filed too late, and a proceeding on appeal based thereon will be dismissed.
Appeal from District Court, Garvin County; W.G. Long, Judge.
Objection by H.E. Grimes et al. to the confirmation of a sale after foreclosure proceedings by John A. Ward, trustee for the use and benefit of Beatrice Bittorf. From an order confirming sale an appeal is prosecuted. Dismissed.
R.E. Bowling and Jameson, Gray McMahon, for plaintiffs in error.
Blanton, Curtis Blanton, Samuel A. Boorstin, and Robert J. Wolsey, for defendant in error.
This is an appeal from an order confirming sheriff's sale entered March 9, 1936. The appeal was filed September 29, 1936. A motion for new trial was filed after the order of confirmation was entered and thereafter overruled. The motion to dismiss is upon the ground that the motion for new trial was unnecessary and therefore served no purpose to extend the time in which the case could be filed in this court. The appeal must be dismissed.
This court has many times held that the filing and determination of a motion for new trial on a contested question of fact arising upon a motion and not upon the pleadings is unnecessary and serves no purpose to extend the time in which to file an appeal. Powell v. Nichols, 26 Okla. 734, 110 P. 762; Williamson v. Adams, 31 Okla. 503, 122 P. 499; Wilkinson v. Thomas, 175 Okla. 351, 52 P.2d 726; United Mining Milling Co. v. First Nat. Bank, 167 Okla. 638, 31 P.2d 550; Lambert v. Monarch Cement Co., 141 Okla. 31, 285 P. 844; Haffner v. Commerce Trust Co., 177 Okla. 313, 58 P.2d 863.
The appeal is dismissed.
OSBORN, V. C. J., and BUSBY, PHELPS, CORN, and GIBSON, JJ., concur. McNEILL, C. J., and RILEY, BAYLESS, and WELCH, JJ., absent.