Opinion
No. 21558
Opinion Filed February 3, 1931. Rehearing Denied February 24, 1931.
(Syllabus.)
1. Appeal and Error — Nullity of Case-Made not Made and Served Within Legal Time.
Where plaintiff in error fails to make and serve case-made within the time allowed by law or within the time as extended by valid order of the court, the same is a nullity and on motion the appeal will be dismissed.
2. Same — Recital in Trial Judge's Certificate Negatived by Record.
The certificate of the trial judge to a case-made is not a verity, but is only prima facie evidence of the facts recited in said certificate, and where the recital in the certificate is shown by the record to be erroneous the record will control.
Error from District Court, Muskogee County; W.J. Crump, Judge.
Action by the Adair Realty Trust Company against C.D. Harnage, County Treasurer of Muskogee County. From a judgment in favor of the defendent, plaintiff appeals. Dismissed.
Stone, Moon Stewart, for plaintiff in error.
William B. Moore, City Atty., and S.H. Lattimore, Co. Atty., for defendant in error.
This is an appeal from a judgment of the district court of Muskogee county rendered on the 30th day of January, 1930, in an action wherein the plaintiff in error was plaintiff. The motion for new trial was overruled February 1, 1930, and the time in which to serve case-made was extended 60 days from that date. On April 1, 1930, by order of the court, the time to serve case-made was extended 60 days from that date. On May 30, 1930, the time in which to serve case-made was by order of the court extended 30 days from date. No further orders extending such time were made.
The case-made was served upon the defendant in error on June 30, 1930, and the certificate of the trial judge recites that, "Upon examination of the said case-made I find that same has been duly prepared and served upon the defendant herein within the time allowed by law and by the orders of this court."
The time in which to serve the case-made as extended by order of the court of May 30, 1930, expired on June 29, 1930. The case-made served June 30, 1930, was not served within the time allowed by law or a valid order of the court, is a nullity, and brings nothing before this court for review. Shinn v. Oklahoma City Building Loan Ass'n, 130 Okla. 173, 266 P. 435; Petty v. Foster, 122 Okla. 153, 252 P. 836; Harrison v. Reed, 81 Okla. 149, 197 P. 159.
The purported record presented clearly shows the recital in the certificate of the trial judge, that the case-made had been duly served within the time allowed by law and the order of the court, is erroneous, and in such case the record will control. Town v. Crawford, 106 Okla. 254. 234 P. 208.
For the reason there is nothing before this court for review, the appeal is dismissed.
Note. — See under (1) anno. 42 L. R. A. N. S.) 623; 2 R. C. L. p. 159; R. C. L. Perm. Supp. p. 352.