Opinion
No. 1915
Opinion Filed January 10, 1911. Rehearing Denied March 21, 1911.
APPEAL AND ERROR — Case-Made — Sufficiency — Extension of Time. A purported order of the trial judge, extending the time in which to make and serve a case-made, is without force, where the case-made fails to show affirmatively that such order was ever filed as a part of the record in the case in the lower court, or entered upon the record or the journal of said court.
(Syllabus by the Court.)
Error from Rogers County Court; Archibald Bonds, Judge.
Action between F. W. Casner and J. C. Smith. From the judgment, Casner brings error. Dismissed.
E. G. Wilson, for plaintiff in error.
Wm. F. Ball and Jas. S. Davenport, for defendant in error.
The verdict was rendered in favor of the defendant in error on July 10, 1909. Motion for a new trial was filed on July 12, 1909, and overruled on August 17, 1909, at which time the plaintiff in error was allowed 90 days in which to prepare and serve case-made, and the defendant in error 20 days in which to suggest amendments; the case-made to be settled on 5 days' notice.
On November 1, 1909, the trial judge granted an extension of time in which to make and serve case-made for an additional 60 days from that date; the defendant in error being allowed 10 days to suggest amendments, the case-made to be settled on 5 days' notice. On December 20, 1909, the attorneys for the defendant in error accepted service of the case-made; but the order of November 1, 1909, allowing additional time in which to make and serve case-made, does not appear to have been filed with the clerk of the lower court, or made a part of the record of said court. This was essential. Ellis et al. v. Carr, 25 Okla. 874, 108 P. 1101; Springfield Fire Marine Ins. Co. v. Gish, Brook Co., 23 Okla. 824, 102 P. 708.
The motion to dismiss the proceeding in error is sustained.
All the Justices concur.