Opinion
No. 7078
Opinion Filed April 27, 1915.
APPEAL AND ERROR — Case-Made — Time of Service — Dismissal. A case-made, not served within the time allowed by law or a lawful extension of such time, is a nullity, and an appeal based thereon will be dismissed.
(Syllabus by the Court.)
Error from County Court, Pawnee County; Geo. E. Merritt, Judge.
Action by Eva P. Gilbert and another against George Divelbiss, T. M. Johnson intervening. Judgment for intervener, and plaintiffs bring error. Appeal dismissed.
See, also, 40 Okla. 622, 139 P. 1132.
Dillard Blake, for plaintiffs in error.
McNeill McNeill, for defendants in error.
The only question presented in this motion to dismiss is whether or not the following order operates to extend the time to make and serve case-made beyond the 25th day of October, 1914, the date of expiration of time previously allowed:
"Now on this 24th day of October, 1914, the above case coming on for hearing upon the application of the plaintiffs for additional time to sign and settle said case-made and file the petition in error in the Supreme Court, the interpleader, T. M. Johnson, being represented by McNeill McNeill and the plaintiffs by Dillard Blake, and the court, being fully advised in the premises, finds said extension is needed to sign and settle case-made, and to have said petition in error filed in the Criminal Court of Appeals. It is therefore hereby ordered, adjudged, and decreed by the court that the plaintiffs be given 60 days' additional time to file said petition in error in the Supreme Court, and that said time be extended from October 25, 1914, until the 24th day of December, 1914."
On the 23d day of December, 1914, the case-made was served upon defendants in error and on that day settled and signed by the trial judge. Defendants in error seek to have the appeal dismissed on the ground that the above order did not operate to extend time for making and serving case-made beyond the 25th day of October, the date of expiration of time formerly allowed. We think this contention is correct. The order quoted cannot be construed into an order extending time for making and serving case-made. It nowhere mentions making or serving of the case-made, but in one place refers to time to sign and settle case-made, then proceeds to attempt to extend the time "for filing petition in error in this court."
Where the parties to an action fail to comply with the statutory prerequisites to confer upon this court jurisdiction in a proceeding in error, the appeal cannot be considered by this court, but will be dismissed.
The appeal is dismissed.
All the Justices concur.