Opinion
No. 27430.
November 4, 1936.
(Syllabus.)
1. Appeal and Error — District Judge Assigned to Outside County not Authorized After Assignment Expires to Extend Time for Service of Case-Made.
A district judge, who has been assigned by order of the Chief Justice to hold court in a county outside of the district in which he is elected, has no authority, after the expiration of the time fixed in the order assigning him to hold court in said county, to grant an extension of time in which to prepare and serve case-made in a case tried before him while lawfully holding court in said county.
2. Same — Nullity of Case-Made not Served Within Legal Time.
A case-made which is not served within 15 days after the judgment of the trial court or some legal extension thereof serves no purpose to present error to this court.
3. Same — Appeal by Transcript — Motions for New Trial and Rulings Thereon not Part of Record and not Effective to Extend Time for Notice of Appeal or for Filing Case-Made in Supreme Court.
Motions for new trial and rulings made thereon are not a part of the record, and where the appeal is by transcript serve no purpose to extend the time for giving notice of appeal or in which a case-made can be filed in this court.
Appeal from District Court, Pottawatomie County; S.L. O'Bannon, Assigned Judge.
Action by Jesse Palphrey against the Graf Packing Company et al. From a judgment for the plaintiff, defendants appeal. Dismissed.
Chapman Chapman, for plaintiffs in error.
Reily Reily, for defendant in error.
Judgment was rendered in this case on the 9th day of March, 1936. Thereafter, on the 17th day of April, 1936, the court overruled a motion for new trial and granted 60 days in which to prepare and serve case-made. Notice of appeal was given on the date of the order overruling the motion for new trial. On the 10th day of June, 1936, Judge O'Bannon caused to be entered a second order extending the time to make and serve case-made until the 20th day of July, 1936. This order has been attacked by a motion to dismiss for the reason that S.L. O'Bannon was assigned by the Chief Justice of this court as a special judge for this district, and that the assignment authorized him to hold court for a period of one week beginning Monday, April 13, 1936, and that therefore the last day on which he could legally act in this district was the 20th day of April, 1936, and that therefore the order of June 10, 1936, was invalid.
In First State Bank of Mountain Park v. School Dist. No. 65, 63 Okla. 233, 164 P. 102, the syllabus is as follows:
"A district judge, who has been assigned by order of the Chief Justice to hold court in a county outside of the district in which he is elected, has no authority, after the expiration of the time fixed in the order assigning him to hold court in said county, to grant an extension of time in which to prepare and serve case-made, in a case tried before him while lawfully holding court in such county."
See, also, to the same effect, Shawnee National Bank v. Van Zant, 84 Okla. 107, 202 P. 285.
Under the rule many times announced by this court, a case-made which is not made and served within the 15 days allowed by statute or some legal extension thereof serves no purpose to present error to this court. The appeal cannot be by transcript for the reason that motion for new trial and the order made thereon are not a part of the record and serve no purpose to extend the time in which notice of appeal can be given or a case can be filed in this court. Brigham v. Davis, 126 Okla. 90, 258 P. 740; Smith v. Morrison, 166 Okla. 285, 27 P.2d 631.
The appeal is therefore dismissed.
McNEILL, C. J., OSBORN, V. C. J., and PHELPS, CORN, and GIBSON, JJ., concur. RILEY, BAYLESS, BUSBY, and WELCH, JJ., absent.