Opinion
No. 3516
Opinion Filed October 13, 1914.
1. APPEAL AND ERROR — Case-Made — Time for Service. A purported case-made, which is not served within three days after the judgment or order is entered, or within an extension of time duly allowed, is a nullity, and cannot be considered by this court.
2. SAME — Time for Appeal — Dismissal. Under chapter 18, p. 35, Sess. Laws 1910-11, proceedings in error in the Supreme Court must be brought within six months from the date of the rendition of the judgment or order from which the appeal is sought to be taken, and when not so brought, this court is without jurisdiction, and the same will be dismissed.
(Syllabus by Sharp, C.)
Error from County Court, Bryan County; J. L. Rappolee, Judge.
Action by W. H. Phillips, administrator of the estate of T. J. Patillo, against E. L. Dillingham, administrator of the estate of N. T. Dillingham, deceased, and others. Judgment for defendants, and plaintiff brings error. Appeal dismissed.
Robert Crockett and Victor C. Phillips, for plaintiff in error.
Horton Fowler, for defendants in error.
The judgment in this case was rendered February 22, 1911, and motion for new trial filed February 24th following. This motion was heard March 29th, and, being overruled, it was by the court ordered that the plaintiff have 90 days to serve case-made, etc. From the record before us, it does not appear that the case-made was ever served on opposing counsel.
The case-made, not having been served within the time fixed by statute, or within the 90-day extension granted by the court, is invalid, and cannot be considered on appeal. Devault et al. v. Merchants' Exchange Co., 22 Okla. 624, 98 P. 342; Turley v. Hayes Shirk, 28 Okla. 655, 115 P. 769; Bottoms v. Neukirchner et al., 40 Okla. 142, 136 P. 774; Brown-Beane Co. v. Rucker, 36 Okla. 696, 136 P. 1075; Veverka v. Frank et al., 41 Okla. 142, 137 P. 682, Todd v. Carter et al., 43 Okla. 238, 142 P. 996.
It also appears that the proceedings in error were not commenced in this court within six months after the rendition of the judgment in the trial court (as is provided by chapter 18, p. 35, Sess. Laws 1910-11, but changed to one year by section 5255, Rev. Laws 1910), and for this reason, as well as the one already considered, this court is without jurisdiction to review the judgment of the lower court. Sumner et al. v. Sherwood, 25 Okla. 70, 105 P. 642; Tishomingo Electric Light Power Co. v. Harris, 28 Okla. 10, 113 P. 713; State Savings Bank, etc., v. Bedden et al., 38 Okla. 444, 134 P. 20; Malloy v. Johnson et al., 40 Okla. 454, 139 P. 310; Muskogee Electric Traction Co. v. Howenstine, 40 Okla. 543, 138 P. 381, 139 P. 524; May v. Roberts, 40 Okla. 659, 140 P. 399.
The appeal should be dismissed.
By the Court: It is so ordered.