We are convinced that there is nothing in the proceedings on said motions which warrants us in reviewing the action on the motions on this record. We have held that a party cannot by subsequent motions addressed to the court extend the time for appeal. Chestnut v. Overholser, 75 Okla. 190, 182 P. 683; Philbrock v. Home Drilling Co., 117 Okla. 266, 246 P. 457; McCornack v. Fleming, 70 Okla. 50, 172, P. 952. The appeal is dismissed.
The appeal must be dismissed for the reason that the filing and determination of a motion for new trial was not necessary and did not extend the time in which the appeal could be filed in this court. Harper v. Rutland Savings Bank, 79 Okla. 274, 192 P. 1101; Chesnut v. Overholser, 75 Okla. 190, 182 P. 683; Powell v. Nichols, 26 Okla. 734, 110 P. 762; Butler v. Archard, 130 Okla. 241, 266 P. 1106; United Mining Milling Co. v. First National Bank of Davis, 167 Okla. 638, 31 P.2d 550; Hawkins v. Steil, 172 Okla. 301, 45 P.2d 147. The appeal is therefore dismissed.
It has been repeatedly and consistently held by this court, where the question was involved, that the time within which to suggest amendments begins to run, not from the date of service of the case-made, but from the expiration of the date allowed within which to make and serve the same. Gilliam v. Guaranty State Bank, 57 Okla. 673, 157 P. 750; Sovereign Camp Woodmen of the World v. Chumley, 58 Okla. 681, 161 P. 1175; City of Enid v. McCann, 67 Okla. 68, 171 P. 452; Chestnut v. Overholser, 75 Okla. 190, 182 P. 683; Watson v. Shaffner, 77 Okla. 1, 184 P. 1016; Brockhaus v. Aetna Building Loan Ass'n, 79 Okla. 270, 192 P. 1004; Sharp v. Sharp, 80 Okla. 67, 194 P. 100; Hudgens v. State, 84 Okla. 249, 206 P. 200; Brockhaus v. Aetna Bldg. L. Ass'n, 85 Okla. 94, 204 P. 639; Langley v. Albert, 140 Okla. 176, 282 P. 608. It is urged by the plaintiffs in error that by reason of the provision of the order of the court made November 16, 1929, that the plaintiff have three days "after service" of the case-made, the case-made having been served on November 25, 1929, the time in which to suggest amendments expired on November 26, 1929, and that by reason thereof the case-made was not prematurely settled.
A case-made settled and signed before the expiration of the time allowed for the suggestion of amendments thereto is a nullity, unless the right to suggest amendments is waived. Hart v. New State Bank, 58 Okla. 654, 100 P. 605; Hubbard v. Meek, 61 Okla. 60, 160 P. 1128; Chesnut v. Overholser, 75 Okla. 190, 182 P. 683; Hudgens v. State ex rel. Mills, County Attorney, 84 Okla. 249, 208 P. 200. In this case the notice of the time of presentation of the case-made to the trial judge for settlement was duly served upon and accepted by Mary P. Gillett, but the place where said case-made would be presented to the trial judge is not specifically designated. It is limited only to McClain county, and from which the defendant was not informed as to where in said county case-made would be presented for settlement.
It has been repeatedly held by this court, and is a well settled rule of law in this state and in most all of the states, that where a motion for a new trial is unnecessary, the filing of such a motion does not operate to extend the time within which the appeal must be perfected by filing the petition in error and case-made, or transcript of the record in this court. Cowart v. Parker, Washington Co., 40 Okla. 56, 136 P. 153; St. Louis S. F. Ry. Co. v. Nelson, 40 Okla. 143, 136 P. 590; Clapper v. Putnam Co., 70 Okla. 99, 158 P. 297; Chestnut v. Overholser, 75 Okla. 190, 182 P. 683; McDonnell v. Continental Supply Co., 79 Okla. 286, 193 P. 524; Ashinger v. Local Union No. 276, 81 Okla. 206, 197 P. 170; Small v. Rice, 82 Okla. 158, 198 P. 998; Crawford v. Shintafer, 92 Okla. 22, 217 P. 867. Was a motion for a new trial necessary so far as the labor lienors were concerned?
Hoover v. State ex rel., 73 Okla. 112, 175 P. 117. While our attention has not been called to a case where such a question arose, this court has frequently held that where a motion for a new trial was filed, where such a motion was not necessary, the filing of the motion did not operate to extend the time for giving notice of intention to appeal, but that the time for giving such notice dated from the date of the overruling of the motion and the rendition of the judgment complained of. Chestnut v. Overholster, 75 Okla. 190, 182 P. 683; Crawford v. Shintaffer, 92 Okla. 22, 217 P. 867. Section 810, Comp. Stat. 1921, grants to the district courts power to vacate or modify its own judgments or orders at or after the term at which such judgment or order was made, and enumerates the grounds upon which such order of vacation may be made.
"A motion for new trial is unnecessary to enable this court to review the action of the trial court in sustaining an objection to the introduction of any evidence by a plaintiff upon the ground that his petition fails to state a cause of action." It is a well-settled principle, sustained by numerous decisions of this court, that where a motion for new trial is unnecessary to present to this court for review an order or judgment appealed from, such motion and decision thereon by the trial court are ineffectual to extend the time within which to perfect an appeal. Chestnut et al. v. Overholser, 75 Okla. 190, 182 P. 683. A careful investigation of the record in this case discloses the fact that the judgment of the court sustaining the objection of the defendant to the introduction of any evidence by the plaintiff for the reason that the plaintiff's petition failed to state a cause of action was rendered on the 11th day of February, 1920, and while motion for new trial was filed on the 12th day of February, 1920, said motion was not heard until the 27th day of March, 1920, upon which last date the plaintiff filed his notice of appeal to this court, the last said date being more than ten days after the condition of the judgment sought to be appealed from.
The petition in error and case-made not being filed in the Supreme Court within six months from September 24, 1919, these proceedings are therefore void as to the order or judgment of that date. Chestnut v. Overholser, 75 Okla. 190, 182 P. 683, and cases cited therein. Where a motion for new trial is unnecessary to present to this court for review an order or judgment appealed from, such motion and the decision thereon by the trial court are ineffectual to extend the time within which to effect an appeal. Chestnut v. Overholser, supra.
The case-made was signed and settled in pursuance of the written notice, in the absence of either the agent or attorney of the defendant in error, and he now moves to dismiss the appeal upon the ground that the time allowed by the trial court for suggesting amendments to a case-made commences to run, not from the date of the service of the case-made, but from the expiration of the period of extension. In support of his motion, he cites a long line of decisions by this court, commencing with Reed v. Wolcott, 40 Okla. 451, 139 P. 318; Cummings v. Tate, 47 Okla. 54, 147 P. 304, where the rule in M., K. T. R. Co. v. City of Ft. Scott, 15 Kan. 435, is quoted with approval and followed, and ending with Chestnut v. Overholser, 75 Okla. 190, 182 P. 683, and Watson v. Shaffner, 77 Okla. 1, 184 P. 1016. As these cases seem to be directly in point and sustain the contention of the movant, we are not disposed to depart from a rule of practice which has been so long and firmly established.
To the same effect is Bond v. Cook, 28 Okla. 446, 114 P. 723; Williamson v. Adams 31 Okla. 503, 122 P. 499; Powell v. Nichols, 26 Okla. 734, 110 P. 762. It is equally settled by the decisions of this court that where a motion for new trial is unnecessary to present to this court for review an order or judgment appealed from, such motion and decision thereon by the trial court are ineffectual to extend the time within which to effect an appeal. Chestnut et al. v. Overholser, 75 Okla. 190, 182 P. 683; Carey v. Vickers, 53 Okla. 569, 157 P. 299; Cowart v. Parker-Washington Co. et al., 40 Okla. 56, 136 P. 153; St. L. S. F. R. Co. v. Nelson, 40 Okla. 143, 156 P. 590. The record discloses that the judgment and order complained of was rendered on September 22, 1917, and that the six months period in which an appeal must be lodged in this court expired on March 22, 1918, and the petition in error not having been filed until March 25, 1918, the same did not confer jurisdiction upon this court to review the action of the trial court.