Opinion
No. 22465
Opinion Filed February 14, 1933.
(Syllabus.)
Appeal and Error — Nullity of Case-Made not Served Within Legal Time.
Where case-made was not served within 15 days from the date of rendition of judgment on an order sustaining the objection to introduction of testimony and dismissing the case, a motion for new trial does not extend the time in which to grant an order to make and serve case-made, and a case-made not made and served within the 15 days or some extension thereof within that time is a nullity.
Appeal from District Court, Tulsa County; Owen Owen, Judge.
Action by the Rounds Porter Lumber Company against Tom Sherry et al. to foreclose a lien. From a judgment for the defendant, plaintiff appeals. Dismissed.
Hudson Hudson, for plaintiff in error.
E.G. Wilson and Roy Sherry, for defendants in error.
On the 15th day of June, 1931, appellant filed petition in error with case-made attached, appealing from a judgment entered in favor of defendant in district court of Tulsa county, Okla., under date of December 18, 1930. Motion to dismiss this appeal was filed June 25, 1931, and response thereto July 20, 1931; a reply to the response was filed on the same date. The motion to dismiss urges, first, that no notice of appeal was given; and second, that the case-made was not served and settled within any extension of time under the law.
Movant cited the case of Minnetonka Oil Co. v. Cleveland Vitrified Brick Co., 48 Okla. 156, 149 P. 1136, the syllabus of which is as follows:
"It is not necessary to file a motion for new trial before bringing to this court for review a ruling of the court sustaining an objection to the introduction of any evidence and judgment dismissing the case."
See, to the same effect, the case of Clapper v. Putnam Co., 70 Okla. 99, 158 P. 297. It is the order of the court that the motion to dismiss be granted and the judgment of the lower court affirmed.
Note. — See under (1) 2 R. C. L. 158, 159.