Opinion
No. 3535
Opinion Filed July 18, 1912. On Rehearing January 21, 1913.
APPEAL AND ERROR — Record — Case-Made — Service. A case-made not served within three days after the judgment sought to be reviewed is entered, or within the extension of time allowed by the court or judge, is void, and will not be considered.
(Syllabus by Brewer, C.)
Error from District Court, Rogers County; T. L. Brown, Judge.
Action by J. G. Rucker and F. M. Rucker, copartners, doing business as Rucker Bros., and E. M. Brown, against Brown-Beane Company and others. Judgment for plaintiffs, and defendants bring error. Dismissed.
Biddison Campbell, for plaintiffs in error.
John Q. Adams and Randolph Haver, for defendants in error.
This cause is appealed from the district court of Rogers county, and is brought for the purpose of reviewing an order of said court wherein it denied a motion to dissolve a temporary injunction and by order continued the same in full force and effect pending the final hearing of the cause.
The petition in error herein was filed in this court January 24, 1912, and on April 25, 1912, the defendants in error filed their motion to strike the case-made from the files and to dismiss the appeal. One of the reasons assigned for dismissing the appeal is:
"Because said case-made shows that it was not served upon the defendants in error within the time fixed by the order of the court."
The motion to dismiss the appeal must be sustained upon the above ground.
From the case-made it appears that the order and judgment of the court complained of was rendered on December 26, 1911, and further shows that on said date the plaintiffs in error were allowed ten days in which to make and serve case-made for appeal to the Supreme Court. The case-made appears to have been served on the defendants in error on January 6, 1912. The date of the service of the case-made as stated, is shown by the certificate of the attorney for plaintiffs in error, and also by an acceptance of service by the attorneys for defendants in error; the record fails to show any order of the court further extending the time.
Therefore it follows that the case-made was not served within the ten days allowed by the order of the court. This is jurisdictional; and for the reasons stated, following the decisions of this court, the case-made is a nullity, and the appeal should be dismissed. Haynes et al. v. Smith, 29 Okla. 703, 119 P. 246; Thompson et al. v. Fulton, 29 Okla. 700, 119 P. 244; Devault et al. v. Merchants' Exchange Co., 22 Okla. 624, 98 P. 342; Bettis v. Cargile et al., 23 Okla. 301, 100 P. 436; Bray v. Bray, 25 Okla. 71, 105 P. 200; Carr v. Thompson et al., 27 Okla. 7, 110 P. 667; Cowan v. Maxwell, 27 Okla. 87, 111 P. 388; Lankford v. Wallace, 26 Okla. 857, 110 P. 672.
By the Court: It is so ordered.