Opinion
No. 2375
Opinion Filed November 26, 1912. Rehearing Denied May 13, 1913.
APPEAL AND ERROR — Service of Case-Made — Review. Where a case-made is not served within the three days allowed by statute (sections 6074-6075, Comp. Laws 1909), and no order is made within that time extending the time for service of the same, a purported case-made served out of time is a nullity, and presents as such, nothing for this court to review.
(Syllabus by Brewer, C.)
Error from District Court, Muskogee County; John H. King, Judge.
Action by Oscar L. Smith against the Missouri, Oklahoma Gulf Railway Company. Judgment for plaintiff, and defendant brings error. Dismissed.
E. R. Jones, for plaintiff in error.
W. W. Gresham, for defendant in error.
This case was filed in the district court of Muskogee county, Okla., on the 17th day of November, 1909. It was tried on the 13th day of September, 1910, resulting in a verdict for the defendant in error, who was plaintiff below. A motion for new trial was filed September 16, 1910, and was overruled on October 1st thereafter, and judgment entered on that day.
The record fails to show that any order was made extending the time for serving a case-made at the time or within three days after the time the motion for new trial was overruled. It is true that on November 18, 1910, an order was made which purports to be a further extension of time and a similar order was again made December 30th, purporting to grant a further extension of time, but both of these orders were made without authority of law, for the reason that the court at the time they were made is not shown to have had any power to make them. Under sections 6074 and 6075, Comp. Laws, 1909, a case-made must be prepared and served upon the adverse party within three days of the date of the judgment in the case, unless for good cause shown the time therefor is extended by the court. The case-made in this appeal was not prepared and served within three days, nor does the record show that within that time an order was made extending the time, and as this has been held to be jurisdictional, and as the only errors assigned and complained of here are errors occurring at the trial, we are without authority to examine and pass upon the questions raised. Saxon v. Hardin, 29 Okla. 17, 118 P. 264; Lathim v. Schlack, 27 Okla. 522, 112 P. 968; Bettis v. Cargile et al., 23 Okla. 301, 100 P. 436; Willson v. Willson, 27 Okla. 419, 112 P. 970; Carr v. Thompson, 27 Okla. 7, 110 P. 667; First National Bank of Shawnee v. Oklahoma National Bank of Shawnee, 29 Okla. 411, 118 P. 574.
Therefore for the reasons given this case should be dismissed.
By the Court: It is so ordered.