STATE v. GRAHAM

(Syllabus.)

Where a cause is tried upon an agreed statement of facts, leaving for the court the sole question of application of the law to such facts, a motion for a new trial is unnecessary and unauthorized by the statute and does not extend the time within which an appeal may be perfected in the Supreme Court, and the time for perfecting such appeal runs from the date judgment is rendered and not from the date of the overruling of such unnecessary and unauthorized motion.

PER CURIAM.

The judgment of the trial court was entered on the 2nd day of October, 1934, and a motion for new trial was filed on the 4th day of October, 1934, and the order overruling said motion was entered on December 11, 1935, and the appeal is prosecuted to this court from the latter order, the petition in error being filed herein under date of April 1, 1936.

A motion to dismiss has been filed for the reason that the cause was tried upon an agreed statement of facts and the filing and determination of a motion for new trial was unauthorized and served no purpose to extend the time in which an appeal could be filed from the original judgment of the court dated the 2nd day of October, 1934.

The motion to dismiss must be sustained. See Showalter v. Hampton, 122 Okla. 192, 253 P. 105; City of Ada v. Carter, 162 Okla. 23, 18 P.2d 1051; Setzer v. Moore, 164 Okla. 70, 22 P.2d 998; Cannon v. Cannon, 173 Okla. 366, 40 P.2d 649.

The appeal is therefore dismissed.

McNEILL, C. J. and BUSBY, WELCH, PHELPS, CORN, and GIBSON, JJ., concur. OSBORN, V. C. J., and RILEY and BAYLESS, JJ., absent.