Opinion
No. 4612
Opinion Filed October 14, 1913.
APPEAL AND ERROR — Service of Case-Made — Extension of Time. Where the time granted by the trial court within which to make and serve a case-made has expired, said court has no power then to extend the time for making and serving the case-made.
(Syllabus by the Court.)
Error from District Court, Craig County; Byron Kirkpatrick, Judge.
Action by George W. Ruble against L. B. Campbell. Judgment for plaintiff, and defendant brings error. Dismissed.
Guy Patten, for plaintiff in error.
Bailey, Wyand Moon and Blair Brown, for defendant in error.
The question involved in this case is raised by a motion to dismiss filed by defendant in error. The record shows that on June 14, 1912, in the cause below, the motion for a new trial was overruled and final judgment entered by the trial court and the defendant given 60 days from that date within which to prepare and serve a case-made; that on August 14, 1912, an order was entered extending the time for preparing and serving case-made an additional 60 days. The 60 days originally granted within which to make and serve a case-made expired on August 13, 1912; thereafter the court was without jurisdiction to grant a further extension for that purpose. Comp. Laws 1909, sec. 6258 (Rev. Laws 1910, sec. 5341), provided:
"* * * The time within which an act is to be done, shall be computed by excluding the first day, and including the last; if the last day be Sunday it shall be excluded."
The 13th day of August, 1912, was Tuesday, and therefore should not be excluded. The motion to dismiss must be sustained. See Maddox v. Drake, 27 Okla. 418, 112 P. 969; Korimer v. Collins, 31 Okla. 457, 122 P. 159; De Vault et al. v. Merchants' Exchange Co., 22 Okla. 624, 98 P. 342.
Dismissed.
All the Justices concur, except WILLIAMS, J., absent, and not participating.