Graf Packing Co. v. Palphrey

1936 OK 687, 62 P.2d 53, 178 Okla. 95, 1936 Okla. LEXIS 500

• Court: Supreme Court of Oklahoma
• Decided: November 4, 1936
• Docket: No. 27430.
• Status: Published

Opinion

PER CURIAM.

Judgment was rendered in this ease 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 ease-made, in a ease 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. O. J., and PHELPS, CORN, and GIBSON, JJ., concur. •RILEY, BAYLESS, BUSBY, and WELCH, JJ., absent.