Opinion
No. 21381
Opinion Filed September 9, 1930.
(Syllabus.)
Divorce — Appeal and Error — Statutory Requirement That Notice of Appeal from Decree of Divorce Be Given Within 10 Days Held Mandatory.
The provisions of section 1, chapter 119, Session Laws 1925, which provide that a party desiring to appeal from a judgment granting a divorce must within ten days after such judgment is rendered file a written notice in the office of the clerk of the court rendering such decree within 10 days after the rendition thereof, are mandatory and jurisdictional upon proceedings in error, and where such written notice is not filed within the time provided by said section, an appeal from the judgment and decree granting a divorce will be dismissed.
Error from District Court, Ottawa County; J.J. Smith, Judge.
Action by Dennis Wilson against Sallie Wilson. From a judgment and decree granting divorce to the plaintiff, the defendant appeals. Dismissed.
Commons Chandler, for plaintiff in error.
Verne E. Thompson, for defendant in error.
This is an appeal from the Judgment and decree of the district court of Ottawa county granting a divorce to the plaintiff in the trial court. The defendant appeals. The defendant filed her motion for new trial, which was on February 3, 1930, overruled. Notice of appeal was given in open court at the time motion for new trial was overruled and the notice of appeal is incorporated in the journal entry of the order overruling the motion for new trial. The order overruling the motion for new trial contains the recital of the giving of the notice of appeal and is signed by the judge and filed in the office of the court clerk on the 14th day of February, 1930. No other notice is shown by the record filed in this court.
Section 1, chapter 119, Session Laws 1925, provides that a party to appeal from the judgment granting a divorce must, within 10 days after such judgment is rendered, file a written notice in the office of the clerk of the court, duly entitled in such action, stating that it is the intention of such party to appeal from such judgment.
This court has held that the provision of section 510, C. O. S. 1921, which was amended by section 1, chapter 119, Session Laws 1925, is mandatory, and unless such notice is filed with the clerk within the time therein provided, this court is without jurisdiction to review the judgment and decree appealed from. Reynolds v. Reynolds, 94 Okla. 114, 221 P. 109; Vogt v. Vogt, 91 Okla. 272, 217 P. 192; Milan v. Milan, 76 Okla. 62, 184 P. 442; Linkugel v. Linkugel, 74 Okla. 298, 183 P. 55. The language relative to giving notice was not amended.
Where the notice of intention to appeal is incorporated in a journal entry of judgment overruling the motion for new trial and the same is duly entitled in such action and caused to be filed in the office of the clerk of the court within the specified time compliance is had with provisions of section 510 as amended, supra. Allred v. Allred, 131 Okla. 55, 267 P. 842, But in this case the journal entry overruling the motion for new trial and in which the notice of appeal is incorporated was not filed until the 14th day of February, 1930, 11 days after the order was made February 3, 1930, and therefore not within the time required by law, and this court, by reason thereof, is without jurisdiction to review the judgment appealed from. The appeal is dismissed.