WILLIAMS, Justice.
The question to be determined herein is whether, under the provisions of 12 O.S. 1961, § 667, an extension of 60 days to make and serve case-made granted by the trial court to an attorney-legislator, after the commencement of a session of the Legislature, extended the time for so making and serving case-made until 60 days after adjournment of the Legislature.
This matter comes on for consideration of motion of defendant in error to dismiss the appeal herein of plaintiff in error for the reason that the “appeal was not timely perfected”.
The facts pertinent to the issue herein are that the trial court on December 28, 1962, entered judgment for defendant in error; that on such date plaintiff in error filed her motion for a new trial; that on January 15, 1963, such motion was overruled; that thereupon plaintiff in error in open court gave notice of appeal and was granted an extension of 60 days to make and serve case-made; that Mr. Lollar, one of the attorneys of record for plaintiff in error was a member of the Twenty-ninth Oklahoma Legislature, which was then in session; that the 29th Session of the Legislature convened prior to January 15, 1963, and adjourned on June 14, 1963; that the next order by the trial court was dated August 13, 1964, and it granted plaintiff in error 60 days from that date to make and serve case-made.
Title 12 O.S.1961, § 667, in pertinent part provides:
“* * * And when any litigant has given notice of appeal from any judgment of any court of record in this State to the Supreme Court or Criminal Court of Appeals and the time for doing any act to perfect such appeal has, or does hereafter lapse during the session of the Legislature, whether regular or special, and the said litigant is a member of the Senate or House of Representatives, of the State of Oklahoma, in such session, or his attorney of record is such member, such litigant or [658]*658attorney shall have such time after the adjournment of the session of the Legislature to perform such act and complete his appeal as he had at the commencement of the session of the Legislature, of which he or his attorney of record was a member, and all acts done in the perfection of such appeals shall be as valid as if done within the time provided.”
The Court of Criminal Appeals of Oklahoma in the case of Fitzgerald v. State, 65 Okl.Cr. 1, 83 P.2d 581, had occasion to consider an appeal in which an attorney for the defendant was a member of the Legislature and in which case a judgment of conviction was rendered against the defendant after the Legislature had gone into session.
The Court in paragraph 3 of the syllabus of its opinion said:
“Under Ch. 2, Art. 1, Session Laws 1935, 12 Okl.St.Ann. § 667, where the defendant or his attorney of record is a member of the Senate or House of Representatives, and the Legislature is in session at the time a judgment of conviction is rendered, the defendant or his attorney shall have such time after the adjournment of the session to perfect his appeal as he had when the judgment was rendered.”
By the terms of 12 O.S.1961 § 958, plaintiff in error was granted 15 days from date of overruling of her motion for new trial (January 15, 1963) to make and serve case-made. The Court’s order of that date extended such time in effect, for an additional 45 days, i. e., to a total of 60 days.
Such 60 day period, but for the effect of section 667, supra, would have lapsed on March 16, 1963, or considerably prior to adjournment of the Legislature (June 14, 1963).
The trial court made an order on February 11, 1963, (as distinguished from the January 15, 1963, order,) granting plaintiff in error “such time after adjournment of the 29th session of the Legislature to perfect appeal herein as * * * [she] had at the commencement of the session.” This was a superfluous order because it merely purported to do what sections 958 and 667, supra, had already done and that fifteen-day period had been extended previously to sixty days by the trial court’s order of January 15, 1963. That is not to say that it would not be better practice to have the trial court in such cases spell out its meaning in a proper order.
The question then arises as to whether the Legislature by the enactment of section 667 intended that a period of time granted by statute or court order to make and serve case-made which commenced after a legislative session began should lapse during the session. We hold it did not.
Defendant in error calls our attention to the fact that in its order of January 15, 1963, the trial court extended the time within which plaintiff in error could make and serve case-made to 60 days, and that such period expired on March 16, 1963. He argues that the making and serving of case-made is not included within the phrase “perfecting appeal” as used in section 667, supra. We do not agree.
Title 12, O.S.1961, chapter 15, Appeal and Error, § 956 provides in part that “In all actions hereafter instituted by petition in error in the Supreme or other appellate Court the plaintiff in error shall attach to and file with the petition in error the original case-made, filed in the court below, or * * * ” etc.
The attaching of a case-made to a petition in error and the filing of same simultaneously therewith is a requisite part of a valid appeal by case-made.
In the case of Lacer v. Davis Hat Co., 189 Okl. 696, 119 P.2d 850, this Court said:
“Where the purported appeal is by case-made and there is a failure to comply substantially with Section 532, O.S. 1931, 12 Okl.St.Ann. § 956, in furnishing a sufficient case-made and no reasonable excuse is offered for such failure, the proceedings in error will be dismissed.”
[659]*659In the recent case of Wanner v. Wanner, Okl., 350 P.2d 241, this Court discussed the two requirements of 12 O.S.1955, Supp. § 972, (now 12 O.S.1961 § 972) that an appeal by case-made be filed in this Court within twenty days from the date the case-made is settled and that an appeal be filed within three months from the date of the rendition of the judgment or final order complained of (or lawful extension of such period). In the syllabus of that case we said:
“Both such requirements must be met in order to vest this court with jurisdiction of the appeal.”
It is to be noted that all references in our statutes to the making, serving and filing of case-mades to which we have referred appear in chapter 15 of Title 12, Civil Procedure, O.S.1961, under the heading “Appeal and Error”.
We hold that when in section 667, supra, it used the expressions, “for doing any act to perfect such appeal”, “to perform such act and complete his appeal” and “all acts done in the perfection of such appeals” the Legislature not only intended to but necessarily did include acts done in furtherance of the making and serving of case-made.
By virtue of section 667, supra, if notice of appeal is given in a case in which a legislator is either a party-litigant or an attorney, before the beginning of a legislative session, and the time to make and serve case-made would elapse during such session, the time is extended beyond the adjournment of the session by the number of days such litigant- or attorney-legislator had at the commencement of the session to so make and serve case-made.
Free access — add to your briefcase to read the full text and ask questions with AI
WILLIAMS, Justice.
The question to be determined herein is whether, under the provisions of 12 O.S. 1961, § 667, an extension of 60 days to make and serve case-made granted by the trial court to an attorney-legislator, after the commencement of a session of the Legislature, extended the time for so making and serving case-made until 60 days after adjournment of the Legislature.
This matter comes on for consideration of motion of defendant in error to dismiss the appeal herein of plaintiff in error for the reason that the “appeal was not timely perfected”.
The facts pertinent to the issue herein are that the trial court on December 28, 1962, entered judgment for defendant in error; that on such date plaintiff in error filed her motion for a new trial; that on January 15, 1963, such motion was overruled; that thereupon plaintiff in error in open court gave notice of appeal and was granted an extension of 60 days to make and serve case-made; that Mr. Lollar, one of the attorneys of record for plaintiff in error was a member of the Twenty-ninth Oklahoma Legislature, which was then in session; that the 29th Session of the Legislature convened prior to January 15, 1963, and adjourned on June 14, 1963; that the next order by the trial court was dated August 13, 1964, and it granted plaintiff in error 60 days from that date to make and serve case-made.
Title 12 O.S.1961, § 667, in pertinent part provides:
“* * * And when any litigant has given notice of appeal from any judgment of any court of record in this State to the Supreme Court or Criminal Court of Appeals and the time for doing any act to perfect such appeal has, or does hereafter lapse during the session of the Legislature, whether regular or special, and the said litigant is a member of the Senate or House of Representatives, of the State of Oklahoma, in such session, or his attorney of record is such member, such litigant or [658]*658attorney shall have such time after the adjournment of the session of the Legislature to perform such act and complete his appeal as he had at the commencement of the session of the Legislature, of which he or his attorney of record was a member, and all acts done in the perfection of such appeals shall be as valid as if done within the time provided.”
The Court of Criminal Appeals of Oklahoma in the case of Fitzgerald v. State, 65 Okl.Cr. 1, 83 P.2d 581, had occasion to consider an appeal in which an attorney for the defendant was a member of the Legislature and in which case a judgment of conviction was rendered against the defendant after the Legislature had gone into session.
The Court in paragraph 3 of the syllabus of its opinion said:
“Under Ch. 2, Art. 1, Session Laws 1935, 12 Okl.St.Ann. § 667, where the defendant or his attorney of record is a member of the Senate or House of Representatives, and the Legislature is in session at the time a judgment of conviction is rendered, the defendant or his attorney shall have such time after the adjournment of the session to perfect his appeal as he had when the judgment was rendered.”
By the terms of 12 O.S.1961 § 958, plaintiff in error was granted 15 days from date of overruling of her motion for new trial (January 15, 1963) to make and serve case-made. The Court’s order of that date extended such time in effect, for an additional 45 days, i. e., to a total of 60 days.
Such 60 day period, but for the effect of section 667, supra, would have lapsed on March 16, 1963, or considerably prior to adjournment of the Legislature (June 14, 1963).
The trial court made an order on February 11, 1963, (as distinguished from the January 15, 1963, order,) granting plaintiff in error “such time after adjournment of the 29th session of the Legislature to perfect appeal herein as * * * [she] had at the commencement of the session.” This was a superfluous order because it merely purported to do what sections 958 and 667, supra, had already done and that fifteen-day period had been extended previously to sixty days by the trial court’s order of January 15, 1963. That is not to say that it would not be better practice to have the trial court in such cases spell out its meaning in a proper order.
The question then arises as to whether the Legislature by the enactment of section 667 intended that a period of time granted by statute or court order to make and serve case-made which commenced after a legislative session began should lapse during the session. We hold it did not.
Defendant in error calls our attention to the fact that in its order of January 15, 1963, the trial court extended the time within which plaintiff in error could make and serve case-made to 60 days, and that such period expired on March 16, 1963. He argues that the making and serving of case-made is not included within the phrase “perfecting appeal” as used in section 667, supra. We do not agree.
Title 12, O.S.1961, chapter 15, Appeal and Error, § 956 provides in part that “In all actions hereafter instituted by petition in error in the Supreme or other appellate Court the plaintiff in error shall attach to and file with the petition in error the original case-made, filed in the court below, or * * * ” etc.
The attaching of a case-made to a petition in error and the filing of same simultaneously therewith is a requisite part of a valid appeal by case-made.
In the case of Lacer v. Davis Hat Co., 189 Okl. 696, 119 P.2d 850, this Court said:
“Where the purported appeal is by case-made and there is a failure to comply substantially with Section 532, O.S. 1931, 12 Okl.St.Ann. § 956, in furnishing a sufficient case-made and no reasonable excuse is offered for such failure, the proceedings in error will be dismissed.”
[659]*659In the recent case of Wanner v. Wanner, Okl., 350 P.2d 241, this Court discussed the two requirements of 12 O.S.1955, Supp. § 972, (now 12 O.S.1961 § 972) that an appeal by case-made be filed in this Court within twenty days from the date the case-made is settled and that an appeal be filed within three months from the date of the rendition of the judgment or final order complained of (or lawful extension of such period). In the syllabus of that case we said:
“Both such requirements must be met in order to vest this court with jurisdiction of the appeal.”
It is to be noted that all references in our statutes to the making, serving and filing of case-mades to which we have referred appear in chapter 15 of Title 12, Civil Procedure, O.S.1961, under the heading “Appeal and Error”.
We hold that when in section 667, supra, it used the expressions, “for doing any act to perfect such appeal”, “to perform such act and complete his appeal” and “all acts done in the perfection of such appeals” the Legislature not only intended to but necessarily did include acts done in furtherance of the making and serving of case-made.
By virtue of section 667, supra, if notice of appeal is given in a case in which a legislator is either a party-litigant or an attorney, before the beginning of a legislative session, and the time to make and serve case-made would elapse during such session, the time is extended beyond the adjournment of the session by the number of days such litigant- or attorney-legislator had at the commencement of the session to so make and serve case-made.
It is readily apparent that the Legislature failed to specify whether it intended that a period of time granted after the beginning of a legislative session and otherwise elapsing during the session would also be extended so that the litigant- or attorney-legislator would have the same maximum time after the adjournment of such session as he may have had during the session, as would be the case had his period of time to make and serve case-made commenced to run before the session started.
The expression “time * * * has or does hereafter lapse” includes (1) time that started before the session and lapses and (2) time that started after commencement of the session and lapses. The failure of the Legislature to be more specific as to whether it meant the one or the other or both makes the statute ambiguous and uncertain in its effect and authorizes this Court in its interpretation thereof to read into the statute the Legislature’s true intent to avoid such ambiguity and uncertainty.
It has been noted that in the event the time granted the litigant- or attorney-legislator “lapses” during the session, “such litigant or attorney shall have such time”, etc. Apparently, by no distinctions being' drawn, it was intended that the periods to which such lapsing applied would include those commencing during a session as well as those commencing prior to the opening of a session.
It is to be further noted that the statute specifically refers to an appeal initiated prior to the commencement of a session of the Legislature but it does not specifically mention an appeal initiated after the Legislature has convened.
Although the first portion of the quoted part of the statutory provision makes no distinction between a case where notice of appeal is given prior to the time the Legislature convenes and a case where notice of appeal is given after the Legislature convenes, the second portion of such quoted part of the statute would appear by its terms to relate only to those cases where notice of appeal has been given prior to the time the Legislature convenes. The basis for this construction is that if notice of appeal is given after the Legislature convenes, the litigant-attorney had no time to do any act in perfecting an appeal at the commencement of the Legislative session and the statutory provision specifically states “such litigant or attorney shall have such time after the adjournment * * * as he has at the commencement of the session * * * ”.
[660]*660Therefore, the Legislature has made no distinction between cases where notice of appeal has been given prior to beginning of the Legislative session and where notice of appeal has been given after beginning of the Legislative session, but has specified the rights of the litigant- or attorney-legislator giving notice of appeal prior to the Legislative session and has not specified the rights of litigant- or attorney-legislator where notice of appeal is given after the Legislative session. It necessarily follows the Legislature has included in the above statutory provision, those cases where notice of appeal has been given after the Legislature has convened, without specifically stating what those rights are.
It is to be further noted that the first part of section 667, supra, (not quoted herein), provides that a member of the Legislature who is an attorney of record in a cause is entitled to a continuance of such action while the Legislature is in session regardless of whether he was “employed before or during the session of the Legislature”. Here, the Legislature made no distinction between one employed before the session started and one employed during the session. To the contrary, it specified that no distinction should be made on such basis. It would seem therefore that the Legislature did not intend to distinguish between a cause in which notice of appeal was given one or more days before the commencement of a session of the Legislature and a cause wherein the notice of appeal was given during the session.
In the case of Keck v. Oklahoma Tax Commission, 188 Okl. 257, 108 P.2d 162, 164, is the following language:
“It is a cardinal rule that in the construction of statutes the legislative intent must govern and to arrive at the legislative intent the entire Act must be considered and when the intention of the legislature can be gathered from the entire statute, words may be modified, altered or supplied to give the statute the force and effect which the legislature intended. Oklahoma Natural Gas Co. v. Corporation Commission, 90 Okl. 84, 216 P. 917.”
In State ex rel. Rucker v. Tapp, Okl., 380 P.2d 260, 263, we said:
“In 50 Am.Jur., Statutes, Sec. 226, p. 209, it is stated:
“ ‘ * ‡ * (U) se may be made by the courts of aids to the construction of the meaning of words used in a statute, even where, on superficial examination, the meaning of the words seem clear. Ambiguity of statutes may arise otherwise than from fault of expression. An ambiguity justifying the interpretation of a statute, is not simply that arising from the meaning of particular words, but includes such as may arise in respect to the general scope and meaning of a statute when all its provisions are examined. * * * ’ ”
In the case of Big Cabin Creek Conservancy District No. 1 of Craig County, Oklahoma, Okl., 382 P.2d 756, 758, we stated:
“ ‘In construing the statute we have kept in mind the well-established rule that an ambiguous statute will be given a reasonable and sensible construction. In the second paragraph of the syllabus to Brown v. State Election Board, 197 Okl. 169, 170 P.2d 200, this was said:
“ ‘Where a statute is ambiguous or the literal meaning of the statute would lead to absurd consequences which the Legislature probably did not contemplate, the courts must presume that such consequences were not intended, and should adopt a construction that is reasonable and will avoid an absurdity.' ”
The intent, tenor and spirit of the subject section is to carry forward to the end of the session the time within which litigant- or attorney-legislator may perfect his appeal and for him then to have such time to appeal as he had theretofore had pursuant to some other statute or order. The Legislature intended to postpone the lapsing of time for doing any act to perfect an appeal for the period of time the Legislature should be in session.
[661]*661We consider that section 667 provides for a legislative postponement upon assertion of the right but without the necessity of applying therefor. The trial court vmder section 958, supra, may by order grant .an extension of the statutory fifteen day ■period to make and serve case-made for 60 (or other number of) days. As hereinafter 'held, no part of the trial court’s extension ■can elapse while the legislative postponement is running. Upon adjournment of the .Legislature and the lapsing of its postponement by such adjournment, as provided by 'Sec. 667, the statutory time (fifteen days) and the trial court’s extension order, if any, ■of 60 (or other number of) days takes effect and such time commences to run. The Legislature has not expressed an intent or purpose of interfering with the right of the trial court to fix time to make and serve •case-made or with an order of the trial court fixing such time. Through Section 667, the Legislature intended only to establish the ■time that such an order of the trial court should take effect. In fact that is the only •subject with which the quoted portion of the statute did deal.
From a study of the entire statute, it appears the Legislature desired to give litigant- and attorney-legislators protection against being found in default in pending litigation in which they had an interest, during a legislative session. The general tenor of the statute seems to support this conclusion.
In view of our findings already recited, under the above authorities we are authorized to determine what the Legislature intended section 667, supra, to provide with reference to the question involved in this case. We have noted hereinabove the holding of the Court of Criminal Appeals in the case of Fitzgerald v. State, Supra, with reference to a practically identical question. We find the reasoning in the decision in that case to be highly persuasive here.
We can only conclude and hold that where - notice of appeal is given by a litigant- or . attorney-legislator while the Legislature is . in session, and time for making and serving case-made would otherwise lapse during such legislative session, the running of the statutory time (under Title 12 O.S.1961 section 958, i. e. 15 days, or any valid court order extending such time) for making and serving case-made is held in abeyance while the Legislature is in session, and on adjournment thereof, the time granted by statute or valid order extending time to make and serve case-made commences to run. In other words, under such condition, section 667 tolls the running of time during the legislative session and the time allowed by statute or court order commences to run after the adjournment of the Legislature and not from the date it would have commenced to run had the Legislature not been in session.
For the reasons hereinabove set forth, we hold that the fifteen day statutory time as extended by the trial court to sixty days to make and serve case-made commenced to run upon adjournment of the Twenty-ninth Legislative Session. Within lawful extensions of that time, additional extensions were taken before expiration of which case-made was served, appeal was filed, et cetera. Therefore, the appeal brought herein was timely filed and the motion to dismiss should be and is hereby denied. It is further ordered that this cause proceed to briefing on the merits of the controversy.
BLACKBIRD, C. J., and DAVISON, JOHNSON, IRWIN and BERRY, JJ., concur.
HALLEY, V. C. J., and JACKSON, J., dissent.