Opinion
No. 34397.
March 7, 1950. Rehearing Denied March 28, 1950.
(Syllabus.)
1. APPEAL AND ERROR — Motion for new trial on question of fact arising upon motion unnecessary for review of order. The filing and determination of a motion for new trial on a contested question of fact not arising on the pleadings, but upon a motion, is unnecessary to authorize this court to review the order made upon such hearing.
2. SAME — Statutory time for service of case-made. Where the case-made is not served within fifteen days after the judgment is rendered, or within the time fixed by a timely and valid order of the lower court extending the time for service of case-made, this court is without jurisdiction to review the attempted appeal by case-made.
Appeal from District Court, Oklahoma County; Baker H. Melone, Judge.
Action by Alta M. Clayton against James Clayton. Defendant filed a motion to vacate certain portions of a decree granting a divorce to plaintiff. From the order of the trial court overruling such motion, defendant appeals. Dismissed.
Little Hoyt, of Oklahoma City, for plaintiff in error.
Brown, Darrough Ball, of Oklahoma City, for defendant in error.
On November 25, 1941, a judgment was rendered in the trial court granting a divorce to the plaintiff, Alta M. Clayton. No journal entry of this judgment was ever recorded, and on May 13, 1949, plaintiff, after due notice and a hearing, was granted an order nunc pro tunc setting forth the terms of the judgment. On May 16, 1949, defendant, James Clayton, filed in said cause his motion to vacate the decree as to certain specified particulars on the ground that the judgment in the respects complained of was beyond the jurisdiction of the court and void. On June 30, 1949, the trial court overruled this motion, and on July 1, 1949, defendant filed a motion for new trial. On July 18, 1949, the trial court overruled the motion for new trial, and defendant appealed from the order overruling his motion to this court, by petition in error and case-made.
Plaintiff has filed a motion to dismiss the appeal for the reason that the case-made was not served within the time allowed by law, or any valid extension thereof. This motion must be sustained.
This court has held in a number of cases that the filing and determination of a motion for new trial on a contested question of fact, not arising upon the pleadings, but upon a motion, is unnecessary to authorize this court to review the order made upon such hearing. Barfield Petroleum Co. v. Pickering Lumber Co., 137 Okla. 151, 278 P. 391; In re Anderson's Guardianship, 161 Okla. 224, 18 P.2d 1073; Liese v. Hadden, 191 Okla. 666, 132 P.2d 654.
No extension of time in which to make and serve a case-made was granted until July 18, 1949. Prior to that date the time in which to make and serve a case-made had expired. 12 O.S. 1941 § 958[ 12-958]. The order granting time in which to make and serve the case-made thereafter was void. French v. Boles, 128 Okla. 90, 261 P. 196. Where the plaintiff fails to make and serve a case-made within the time allowed by the statute or within the time as extended by the court by an order made prior to the expiration of the statutory time, the same is a nullity, and on motion the appeal based on such case-made will be dismissed. Harjo v. Johnston, 162 Okla. 153, 19 P.2d 961.
Appeal dismissed.