
    McCOMMAS v. SECURITY STATE BANK et al.
    No. 17463
    — Opinion Filed Nov. 16, 1926.
    (Syllabus.)
    1. Appeal and Error — Lack of Jurisdlctioi: —Action on Motion for New Trial Before Filed a Nullity.
    The order of the court overruling the mo tion for a new trial, which is not on fib at the time the order is made, is a nullity the exception taken a nullity, and the notici of intention to appeal without force am effect to give this court jurisdiction to con sider appeal on its merits.
    2. Same — Premature Proceedings on Appea —Dismissal.
    Proceedings in error brought in this court before the application for new trial on writ ten 'grounds are passed upon by the tria court, are prematurely brought and shoul lie dismissed.
    Error from District Court, Kay County Claude Duval, Judge.
    Action between M. F. McCommas amt tb Security State Bank et al. From the judj ment in favor of the Security State Ban] McCommas brings error.
    Dismissed.
    John S. Burger and T. G. Wyley. for plaii tiff in error.
    J. E. Curran and -S. H. King, for defen ants in error.
   PER CURIAM.

Issues were joined in tl trial court between the plaintiff in erre M. F. McCommas, and the defendant in < ror Security State Bank, and the cause su mitted to trial before a jury. At the cc elusion of the evidence, upon motion by i curity State Bank, the trial judge direct a verdict in favor of the Security State Ba and against McCommas, and a verdict w returned accordingly. Thereupon, the tr court proceeded orally to, and did, pronoui judgment upon the verdict of the jury, which McCommas excepted and asked trial court' to consider a motion for n trial filed, and informed the court that s motion would be .filed later. The trial co immediately overruled the motion thus considered, which ruling was excepted to and notice of appeal was given in open court.

Note. — See under (1) 3 O. J. p. 1077, §1086; 29 Cyc. p. 958 (Anno). (2) 3 O. J. pp. 1075, 1077, §1080: 4 O. J. p. 571, §2380.

On the same day. application for a new trial upon written grounds was filed in said court. The record before us does not show any order made by the court disposing of the written motion thus filed. From the judgment and .order of the trial court, plaintiff in error attempts to appeal.

The record before us clearly shows that at the time the trial court overruled the motion for a new trial no such motion was filed. There can be no order overruling a motion for a new trial which was not in existence, and to be in existence it must be on file, and such order is a nullity, the exceptions a nullity, and the notice of appeal based thereon of no force and effect. Singer v. Ooley et al., 112 Okla. 28, 239 Pac. 594.

The motion for a new trial upon written grounds not having been passed upon by the trial court, the proceedings in error in this cfoin't are (prematurely) l](rought, and’, should be, and are, dismissed.  