Auto Convoy Company v. Smith

Supreme Court of Oklahoma

Auto Convoy Company v. Smith

1960 OK 73, 351 P.2d 1053, 1960 Okla. LEXIS 364

CourtSupreme Court of Oklahoma

DecidedMarch 15, 1960

Docket38365

StatusPublished

Cited by6 cases

This text of 1960 OK 73 (Auto Convoy Company v. Smith) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Auto Convoy Company v. Smith, 1960 OK 73, 351 P.2d 1053, 1960 Okla. LEXIS 364 (Okla. 1960).

Pincite

Opinions

PER CURIAM.

The defendant in error, Issac D. Smith, filed a motion to dismiss the appeal in this case for the reason that the appeal was not filed in this Court within the time allowed by law.

The motion for new trial in this case was overruled by the trial court on March 7, 1958, and the defendants below gave notice of appeal and were allowed at that time an extension of 60 days from the 7th of March, 1958, to make and serve case-made, and plaintiff to have 20 days thereafter to suggest amendments, same to be settled on five days notice in writing by either party. A further extension of 30 days was taken in the matter on the 1st of May, 1958, and again on the 5th day of June, 1958, an order was entered by the trial court extending the time for 30 days to make and serve case-made, and the plaintiff to have an additional 10 days thereafter in which to suggest amendments, same to be settled thereafter on five days notice in writing by either party. The case-made was actually settled by the trial judge on July 15, 1958, and filed in this Court on the same date. Nowhere in the record is there any order which extended the time for filing the appeal in this Court.

Under the provisions of 12 O.S.1951 § 972, an appeal must be filed in the Supreme Court within three months from the rendition of the judgment or final order complained of unless the trial court extends the period of time. In this case the three months expired on the 7th day of June, 1958. The sole question in this case was settled by us in the case of City of Cleve[1054]*1054land v. Hambright, Okl., 320 P.2d 388. In that case we specifically held that an order of the trial court extending the time to make and serve case-made does not extend the time in which to perfect the appeal. See also Adams v. Hobbs, 204 Okl. 85, 226 P.2d 913; Wilson v. Wilson, Okl., 264 P.2d 733; Roof v. Fechtel, Okl., 258 P.2d 890.

Section 8, Article 7, of the Constitution, provides as follows:

“The appellate and the original jurisdiction of the Supreme Court shall be invoked in the manner now prescribed by the laws of the Territory of Oklahoma until the Legislature shall otherwise provide.”

The Legislature of our State has provided that appeals must be filed within three months from the rendition of the judgment or final order complained of and since we have held that an extension of time in which to prepare and serve and settle case-made does not extend the time for filing the case in this Court, the appeal in this case must of necessity be, and is hereby dismissed.

WILLIAMS, V. C. J., and HALLEY, BLACKBIRD, IRWIN and BERRY, JJ., concur. JOHNSON, J., concurs by reason of stare decisis. JACKSON, J., concurring specially. WELCH, J., and DAVISON, C. J., dissent.

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PER CURIAM.

The defendant in error, Issac D. Smith, filed a motion to dismiss the appeal in this case for the reason that the appeal was not filed in this Court within the time allowed by law.

The motion for new trial in this case was overruled by the trial court on March 7, 1958, and the defendants below gave notice of appeal and were allowed at that time an extension of 60 days from the 7th of March, 1958, to make and serve case-made, and plaintiff to have 20 days thereafter to suggest amendments, same to be settled on five days notice in writing by either party. A further extension of 30 days was taken in the matter on the 1st of May, 1958, and again on the 5th day of June, 1958, an order was entered by the trial court extending the time for 30 days to make and serve case-made, and the plaintiff to have an additional 10 days thereafter in which to suggest amendments, same to be settled thereafter on five days notice in writing by either party. The case-made was actually settled by the trial judge on July 15, 1958, and filed in this Court on the same date. Nowhere in the record is there any order which extended the time for filing the appeal in this Court.

Under the provisions of 12 O.S.1951 § 972, an appeal must be filed in the Supreme Court within three months from the rendition of the judgment or final order complained of unless the trial court extends the period of time. In this case the three months expired on the 7th day of June, 1958. The sole question in this case was settled by us in the case of City of Cleve[1054]*1054land v. Hambright, Okl., 320 P.2d 388. In that case we specifically held that an order of the trial court extending the time to make and serve case-made does not extend the time in which to perfect the appeal. See also Adams v. Hobbs, 204 Okl. 85, 226 P.2d 913; Wilson v. Wilson, Okl., 264 P.2d 733; Roof v. Fechtel, Okl., 258 P.2d 890.

Section 8, Article 7, of the Constitution, provides as follows:

“The appellate and the original jurisdiction of the Supreme Court shall be invoked in the manner now prescribed by the laws of the Territory of Oklahoma until the Legislature shall otherwise provide.”

The Legislature of our State has provided that appeals must be filed within three months from the rendition of the judgment or final order complained of and since we have held that an extension of time in which to prepare and serve and settle case-made does not extend the time for filing the case in this Court, the appeal in this case must of necessity be, and is hereby dismissed.

WILLIAMS, V. C. J., and HALLEY, BLACKBIRD, IRWIN and BERRY, JJ., concur. JOHNSON, J., concurs by reason of stare decisis. JACKSON, J., concurring specially. WELCH, J., and DAVISON, C. J., dissent.

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Bluebook (online)

1960 OK 73, 351 P.2d 1053, 1960 Okla. LEXIS 364, Counsel Stack Legal Research, https://law.counselstack.com/opinion/auto-convoy-company-v-smith-okla-1960.

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