Whitehead v. Holmes

3 P.2d 1043, 114 Okla. 227, 1926 Okla. LEXIS 998

Opinion

PER CURIAM.

This case is appealed from the district court of Carter county. Motion for a new trial was overruled on the 9th day of July. 1925, and time extended 90 days in which to serve case-made, which expired on the 22nd day of October, '1925. A further-extension was granted cf 60 days, which expired on the 21st day of "December, 1925. Still another extension was granted of 30 days, which expired on the 20th day of January, 1926, and ease-made was settled and signed on the 7th day of January, 1926. Defendants in error now move to dismiss the appeal on the ground that the. last order of extension in which to serve case-made extended the time beyond the six-months period for filing in -this courif Under section 798, O. O. S. 1921, appeals must he-filed within six months after date of final order, and an order extending the time in which to serve case-made beyond this period is void. In the -instant case the time for filing- expired on the 9th day of January, 1926, and the last order of extension extended the time for serving case-made 11 days beyond this period. Section 789, O. O. S. 1921, provides as follows:

’ “The court in which -any case lias been tried and finally determined may, from time to time, make orders extending the time -.or the making and serving of a case, or the filing of tile proceedings in error, for good cause shown, hut not beyond the period in which the proceedings in error may he filed in the appellate court,” etc.

In the case cf Rector et al. v. Swanson et al., 85 Okla. 52, 204 Pac. 299, this court, speaking- through Mr. Justice Nicholson, said:

“An order of the trial court extending the time within which to make and serve case-made beyond tlie six-months period fixed by law in which petition in error and ease-made must be filed in this court, is void.”

To like effect is Hamby v. Mounts, 95 Okla. 163, 217 Pac. 473; Exchange National Bank of Ardmore v. Merritt, 198 Okla. 184. 235 Pac. 180; State Exchange Bank v. Bank of Commerce, 70 Okla. 220, 70 Okla. 234, 169 Pac. 482, 174 Pac. 796.

Case-made not having been settled and signed within a valid extension of time, the same is a nullity and confers no jurisdiction on! this court to review the appeal. The appeal0 is dismissed.