
    PROTEST OF STANOLIND PIPE LINE CO. et al. SEMINOLE COUNTY et al. v. STANOLIND PIPE LINE CO. et al.
    No. 23743.
    April 24, 1934.
    Rehearing Denied May 22, 1934.
    
      Orr & Woodford and Otis H. Presson, for plaintiffs in error.
    Hunt & Eagleton, for defendants in error.
   BUSBY, J.

On June 13, 1929, a judgment was rendered in tke district court of Seminole county in an action therein pending in which S. D. Patterson was plaintiff and Carr school district No. 25, Seminole county, was defendant. Tke judgment was in favor of the plaintiff. No appeal was taken and the judgment became final. It was assigned to Hugh Green.

Tke validity of tke judgment was collaterally attacked in the Court of Tax Review in a protest, filed by tke defendant in error. We have examined the judgment roll in connection with the questioned judgment and find it valid. The reasons for so holding are fully set forth in cause No. 23631. Seminole County, Okla., and Hugh Green, Plaintiff in Error, v. Gulf Pipe Line Company of Oklahoma, a Corporation, Defendant in Error, this day decided, 168 Okla. 136, 32 P. (2d) 42, which involved the same character of attack upon the same judgment. Tke views expressed in the opinion in tkat case are controlling in the case at bar.

An additional contention is made in the brief in this case, namely, that the appeal to tkis court was not perfected in tke lime required by law and should be dismissed. It appears tkat on January 25, 1932, tke Court of Tax Review sustained the protest involved. The decision was not filed with the State Auditor until February 18, 1932. Less than 10 days thereafter, and on February 24, 1932, the decision was set aside, tke cause retried, and the protest was again sustained. Tke appeal was taken witkin tke time required by Jaw from tke latter order and judgment.

Protestant’s counsel contend tkat tke Court of Tax Review had no power to set its former order aside, and that its act in doing so was void. They assert tkat tke time for perfecting appeal is determined by reference to the first judgment. Section 12310, O. S. 1931, provides for appeals from the Conn, of Tax Review. It reads:

‘•Either tke protestant or tke county may appeal from tke final decision of the court to tke Supreme Court of tke state, and it shall be sufficient to perfect such, appeal if tke appellant shall, within ten days after tke filing of suck decision of the court with tke State Auditor, cause to be filed with 'the State Auditor a statement in writing tkat appellant does appeal. If no appeal be taken, the decision of the court shall be final.”

Under tke above section a judgment of the Court of Tax Review does not become final until 10 days after it is filed with tke State Auditor. Without considering the power tkat may be exercised over a judgment after the expiration of that time, it was certainly within the power of the lower tribunal to vacate its own judgment witkin the ten days before it became final. Tke contention of protestant is without merit. The decision of the Court of Tax Review is reversed, with directions to render judgment denying the protest.

CULLISON, V. C. J., and SWINDALL, MCNEILL, and OSBORN, JJ., concur. ANDREWS and WELCH, JJ., dissent. RILEY, C. J., and BAYLESS, J., absent.  