Opinion
No. 5376
Opinion Filed March 30, 1915.
1. APPEAL AND ERROR — Making and Serving Case-Made — Extension of Time. An order extending the time within which to make and serve case-made beyond the six months period fixed by law is void.
2. SAME — Time to Suggest Amendments — Computation. The time within which to suggest amendments to a case-made begins to run after the expiration of the time allowed within which to make and serve same, and not after the actual service thereof.
(Syllabus by the Court.)
Error from District Court, Washington County; R. H. Hudson, Judge.
Action between the Memphis Steel Construction Company and W. H. Hutchison. From the judgment, the Construction Company brings error. Dismissed.
Sherman, Veasey O'Meara, for plaintiff in error.
J. C. Dougherty and W. B. Allen, for defendant in error.
This case is presented on motion to dismiss for the reason that the case-made was settled and certified prior to the expiration of the time granted to suggest amendments. It appears from the case-made that motion for a new trial was overruled on January 27, 1913, and defendant given 90 days to make and serve case-made, 20 days being allowed to suggest amendments, case-made to be settled and signed on five days' notice in writing by either party. Various extensions of time were granted, and on June 25, 1913, an order was made extending the time 30 days from the 1st day of July, 1913, which would extend the time beyond the six months fixed by law in which petition in error and case-made must be filed in the Supreme Court. The last order, which undertook to extend the time beyond the six-months period, no order having been made shortening the time within which to make and serve case-made, was a nullity, and its service after the time fixed by the last valid order was void. Reed v. Wolcott, 40 Okla. 451, 139 P. 318.
It is contended by counsel, however, that by serving the case-made within the six months, the time allowed to plaintiff to suggest amendments would be three days after the date of the service, as no time was fixed for the suggestion of amendments in the orders of extension. While it is true that the orders of extension after the first order make no mention of the time for suggesting amendments, we think it is not necessary to pass upon the question as to whether the time for suggesting amendments would be three days or 20 days, for the reason that, under the decision of this court in Cummings v. Tate, ante, 147 P. 304, the plaintiff would be entitled to time to suggest amendments after the expiration of the time fixed for serving case-made, and not after the actual service thereof. In the opinion of the court, by Mr. Chief Justice Kane, it is said:
"The rule seems to be that the defendant in error is entitled to the full time allowed for the suggestion of amendments after the expiration of the time allowed for making and serving the case-made, unless he waive the same."
See, also, M., K. T. Ry. Co. v. City of Ft. Scott, 15 Kan. 435.
For the reasons stated, the motion to dismiss is sustained, and the cause is dismissed.
All the Justices concur.