Opinion
No. 23609
Opinion filled March 21, 1933. Rehearing Denied April 18, 1933.
(Syllabus.)
1. Appeal and Error — Nullity of Case-Made not Served and Settled Within Legal Time.
A case-made not served and settled within the time allowed by statute (Stat. 1931, sec. 535 et seq.), or some legal extension thereof is a nullity and presents nothing to this court for review.
2. Same — Record — Motions and Rulings.
Motions and rulings thereon are not a part of the record, and unless incorporated in a case-made or bill of exceptions, an appeal by transcript does not present them as error to the court.
Appeal from District Court, Oklahoma County; R.P. Hill, Judge.
Action between C.D. Sautbine and V.C. Johnson. Appeal from judgment dismissing an appeal from justice of the peace court. Dismissed.
C.D. Sautbine, for plaintiff in error.
E.E. Dorsa, for defendant in error.
The appeal was filed herein May 6, 1932, by presenting petition in error together with a transcript of the proceedings had below.
On the 7th day of November, 1921, motion to dismiss the appeal from the justice of the peace court was sustained. No notice of appeal was given at that time, but thereafter, on the 12th day of November, a certain order was entered by the court stating that it should be as effective as if given on the 7th day of November, 1932.
The first order extending time was made the 24th day of November, 1931, after the statutory 15 days in which the time to make and serve case-made had expired.
Under the uniform decisions of this court, a case-made based on such order and served and settled thereunder is a nullity and brings nothing to this court for review. Jones v. Blanton, 130 Okla. 200, 266 P. 438.
Respondent urges that an appeal by transcript raises the errors complained of.
Our court has repeatedly held that motions such as made below, and the orders made thereon, are not a part of the record unless incorporated in a case-made or bill of exceptions. Alexander v. Jacobs, 101 Okla. 149, 224 P. 527; Meeks v. Oklahoma National Bank, 129 Okla. 280, 264 P. 609.
The appeal is, therefore, dismissed.
Note. — See under (1) 2 R. C. L. 158, 159. (2) R. C. L. 127; R. C. L. Perm. Supp. p. 339.