Opinion
No. 5747
Opinion Filed November 17, 1914.
APPEAL AND ERROR — Case-Made — Time for Service — Dismissal. A case-made, not served within the time fixed by statute, or within the time as extended by the court before the expiration of the statutory period, is a nullity, and on motion the appeal will be dismissed.
(Syllabus by the Court.)
Error from County Court, Creek County; Warren H. Brown, Judge.
Action by the Upp Grocery Company, a corporation, against Carl Lins. Judgment for defendant, and plaintiff brings error. Dismissed.
Burt Shaha, for plaintiff in error.
J. T. Smith, for defendant in error.
This cause is before us on motion to dismiss. The record discloses that on May 13, 1913, an order was made overruling the motion for a new trial and allowing plaintiff 90 days to prepare and serve case-made. On August 15, 1913, an order nunc pro tunc was made and entered purporting to correct the order theretofore made and to cause the records to show that the order overruling the motion for new trial was in fact made on June 10, 1913, and plaintiff, as a result thereof, was allowed 90 days from June 10, 1913, in which to prepare and serve case-made. It is unnecessary for us to pass on the question of whether this nunc pro tunc order was valid. This for the reason that the case-made was not served on defendant within this extension of time. Rev. Laws 1910, sec. 5341, provides:
"The time within which an act is to be done shall be computed by excluding the first day, and including the last; if the last day be Sunday, it shall be excluded."
Applying this rule, the time for service of case-made expired on Monday, September 8, 1913. The same was not served on defendant until September 9, 1913. It is well settled in this jurisdiction that a case-made not served within the time fixed by statute or within the time as extended by the court before the expiration of the statutory period is a nullity, and on motion the appeal will be dismissed. De Vault et al. v. Merchants' Exchange Co., 22 Okla. 624, 98 P. 342.
The motion to dismiss the appeal is sustained.
All the Justices concur.