Vannier v. Fraternal Aid Association

1914 OK 207, 140 P. 1021, 40 Okla. 732, 1914 Okla. LEXIS 132

Opinion

LOOFBOURROW, J.

The defendant in error moves to dismiss this appeal for the reason “the case-made attached hereto was not served within the time provided by law or the order of the court or judge thereof.” On September 20, 1913, motion for new trial was overruled and plaintiff in error given 90 days within which to make and serve case-made; this time expired on December 19, 1913; on January 2, 1914, the court attempted to grant an extension of time to prepare the case-made. Under the provisions of section 5246, Rev. Laws 1910, this order was a nullity. See Muskogee Elec. Trac. Co. v. Howenstine, ante, 138 Pac. 381.

The only errors assigned in the petition in error are:

“(1) That said court erred in overruling plaintiff in error’s motion for a new trial; (2) that said court erred in sustaining defendant in error’s demurrer to plaintiff in error’s evidence.”

These two assignments of error cannot be considered on a transcript, without bill of exceptions or case-made, and therefore there is nothing before this court to review. See McMechan v. Christy, 3 Okla. 301, 41 Pac. 582; Lookabaugh v. LaVance, 6 Okla. 358, 49 Pac. 65; Tribal Development Co. et al. v. White Bros. et al., 28 Okla. 525, 114 Pac. 736; Kingman & Co. v. Pixley, 7 Okla. 351, 54 Pac. 494. The appeal is dismissed.

All the Justices concur.