Opinion
No. 6264
Opinion Filed December 14, 1915. Rehearing Denied February 15, 1916. Second Rehearing Denied March 7, 1916.
APPEAL AND ERROR — Case-Made — Time for Filing. A purported case-made which is not served within the statutory time after the judgment appealed from is entered, or within an extension of time duly allowed, is a nullity, and cannot be considered by the Supreme Court.
(Syllabus by Dudley, C.)
Error from Superior Court, Oklahoma County; Edward Dewes Oldfield, Judge.
Action by F.C. Finerty against Louis Navarre and others. Judgment for plaintiff, and defendants Navarre bring error. Dismissed.
H.R. Winn, for plaintiffs in error.
Harry White, for defendant in error.
On December 26, 1912, F.C. Finerty, plaintiff below, commenced this action in the superior court of Oklahoma county against the plaintiffs in error and others, defendants below, to foreclose a real estate mortgage. There was judgment for the plaintiff, from which the defendants Louis Navarre and Julia Navarre, his wife, have attempted to appeal. Since the petition in error was filed in this court the plaintiff, F.C. Finerty, died, and the cause has been revived in the name of May C. Finerty, administratrix of his estate.
The defendant in error has filed a motion to dismiss the pretended appeal, for the reason that the purported case-made was not served within the time allowed by the trial court. The motion for new trial was overruled on October 18, 1913, and the defendants were given 60 days from that date within which to prepare and serve case-made. On November 17, 1913, an order was made extending the time to serve case-made. That portion of the order applicable is as follows:
"Orders that the defendants be, and they are hereby allowed an extension of time for the period of 60 days within which to prepare and serve case-made on appeal to the Supreme Court. * * * "
The case-made was not served within 60 days from the date of this order. On February 16, 1914, another order was made extending the time to serve case-made until April 1, 1914. The purported case-made was served on March 26, 1914. The order of November 17, 1913, does not grant 60 days' additional time from the expiration of the time theretofore given, but in plain words grants 60 days from that date. The order of February 16, 1914, granting additional time to serve the case-made, is a nullity, because the time in which to prepare and serve the same had expired.
The motion to dismiss should be sustained. Soliss v. Davis, County Judge, 28 Okla. 496, 114 P. 609; City of Wagoner et al. v. Gibson et al., 32 Okla. 14, 121 P. 625; Woods v. Colenmn et al., 32 Okla. 244, 122 P. 234; Korimer v. Collins, 31 Okla. 457, 122 P. 159; Lawson et al. v. Zeigler, 33 Okla. 368, 125 P. 724.
By the Court: It is so ordered.