Opinion
No. 28664.
December 13, 1938. Rehearing Denied January 10, 1939.
(Syllabus.)
Appeal and Error — Case-Made a Nullity Where not Made, Served, and Signed Within Time Legally Allowed — Time not Extended by Unnecessary Motion for New Trial.
Where a judgment is rendered by a trial court upon the pleadings and opening statements without an issue of fact, a motion for new trial is neither necessary nor proper and does not extend the time for notice of appeal or making, serving, and settling a case-made. And there is nothing for review in this court in an appeal from such judgment upon case-made not made, served, and signed within the time afforded by statute or within an extension of time granted by the trial court within such statutory time.
Appeal from Superior Court, Okmulgee County; Harland A. Carter, Judge.
Action by H.L. Jenkins against the Times Publishing Company for libel. Judgment for defendant, and plaintiff appeals. Dismissed.
Anton Koch, for plaintiff in error.
C.B. McCrory and Steele Boatman, for defendant in error.
The judgment in this cause was rendered on the 8th day of December, 1937, upon the pleadings and opening statements of counsel. The appeal is not taken from such judgment, but is taken from the order overruling the motion for new trial entered on the 3rd day of January, 1938, more than 15 days after the date of the entry of judgment. The appeal must be dismissed. This court has repeatedly held that a case-made which is not made and served within the 15 days allowed by statute or the order of the court extending the time serves no purpose to present errors to this court. A motion for new trial was not necessary. Crawford v. Shintaffer, 92 Okla. 22, 217 P. 867; Durant v. Nesbitt, 59 Okla. 11, 157 P. 353; Barnett v. Tabor, 154 Okla. 20, 6 P.2d 787; Sanders v. Provine, 169 Okla. 203, 36 P.2d 855. Therefore the motion for new trial served no purpose to extend the time in which a case-made could be prepared. Sanders v. Provine, supra. The 15 days for the preparation of a case-made under section 534, O. S. 1931, 12 Okla. St. Ann. sec. 958, expired on 23d day of December, 1937. It was not until the 3rd day of January, 1938, that the plaintiff in error asked for and obtained an extension of time in which to make and serve a case-made. This order was without effect and did not extend the time past the 15 days allowed by statute. Sanders v. Provine, supra.
The appeal is dismissed.
OSBORN, C. J., BAYLESS, V. C. J., and WELCH, CORN, and HURST, JJ., concur.