Jones v. Montgomery

1929 OK 220, 278 P. 266, 137 Okla. 16, 1929 Okla. LEXIS 389

• Court: Supreme Court of Oklahoma
• Decided: May 28, 1929
• Docket: 19169
• Status: Published

Opinion

HALL, C.

This was an action to recover on a redelivery bond given in a replevin action. The cause was tried and judgment was rendered on September 6, 1927. The plaintiff prevailed. A demurrer to the answer of defendants was sustained, and the defendants elected to stand upon their d'e-murr'er. Therefore, no motion for new trial was necessary. On that date, September 6, 1927, notice of appeal was regularly given, and a period of 60 days was fixed in which defendant might make and serve a case-made.

On November 7, 1927, an order attempting to extend the time in which to serve a case-made was granted. The order purported to extend the time for a period of 60 days. The order is r'egular in all respects, except that it was made two days after the expiration of the time fixed in the previous order for making and serving the case-made. The. case-made was served under the last order.

The first question addressed to us i» a motion of the defendant in error to dismiss the appeal, for the reason that the case-made was not made and served within the time provided by a valid order of the trial court.

By reason of an unbroken line of decisions of this court, the trial court, after November 5, 1927, lost jurisdiction to make an order extending the time in which to Serve the case-made in this case, and the order or purported order made on November 7. 1927. was a nullity; and for such reason it necessarily follows that the appeal will have to be dismissed.

The appeal is dismissed.

BENNETT, HERR, JEFFREY, and DIF-FENDAFFER, Commissioners, concur.

By the Court: It is so ordered.

Note.—See under (1) 2 R. C. L. p. 159; 1 Perm. Supp. p. 352. See “Appeal and Error,” 4 C. J. §1991, p. 350, n. 2.