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Colbert v. Higgambotham

COLBERT v. HIGGAMBOTHAM Et Al.

Colbert v. Higgambotham, 1916 OK 200, 155 P. 1084
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Court
Supreme Court of Oklahoma · State Highest Courts
Decided
February 15, 1916
Docket
No. 6521
Judges
Brewer
Citations
155 P. 10841916 OK 20057 Okla. 691916 Okla. LEXIS 477
Disposition
Dismissed.
Syllabus
APPEAL AND ERROR — Record—Case-Made—Time for Serving. To authorize the making of an order extending the time for serving a case-made, under section 5246, Rev. Laws'1910, after the ¡time allowed by law, or a former order extending the time, has expired, notice must be given the opposite party of the application for such order, and a showing made to the court or judge that the failure to serve ¡the ease within the time previously allowed, and then expired, was because of “accident or misfortune which could hot reasonably have been avoided.” (Syllabus by Brewer, C.)
Summary
Error from County Court, Johnston County; Chas. S. Fenwick, Judge. Action by Mrs. Betsey Colbert against W. C. Higgam-botham and others. Judgment for defendants, and plaintiff brings error.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Brewer

Opinion by BREWER, C.

In this case motion for new trial-was filed and overruled on December 20, 1913, to which action exceptions were taken by plaintiff in error, *70 plaintiff below, and for cause shown 140 days were allowed for making and serving a case-made. Nothing further appears to have been done in the matter until May 15, 1914, at which time plaintiff in error asked and was granted a further extension of 20 days.

It will be seen that the 140 days originally allowed for making and serving case-made had expired several days prior to the making of this last order. There is no suggestion in the application for the order, or in the order itself, that the time previously allowed for making and serving case-made had been insufficient for the purpose, or that plaintiff in error had been unable to serve her case within the time allowed, through “accident or misfortune which could not reasonably have been avoided.” Nor would it be easily discernible as to why such should be the case, as the record in this case consists of only 35 pages, and involves a little more than a mere copy of the mandatory record.

In Wylie v. Shutler, 55 Okla. 377 , 155 Pac. 513 , it is held:

“To authorize the making of an order extending the time for serving a case-made, under section 5246, Rev. Laws 1910, after the time allowed by law, or a former order extending the time, has expired, notice must be given the opposite party of the application for such order, and a showing made to the court or judge that the failure to serve the case within the time previously allowed, and then expired, was because of ‘accident or misfortune which could not reasonably have been avoided.’ ”

If the holding of the above case is correct, and we have no doubt but that it is a proper construction of section 5246, which is the statute involved, then no case-made *71 was served within the time and manner provided by law; and it follows there is nothing before us for review.

The appeal should therefore be dismissed.

By the’Court: It is so ordered.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1923: 11925: 119232026peak 1923 · 1

Relies on it most ⓘ

  1. In re Estate of Stout1925 OK 988, 245 P. 868
  2. Nonnamaker v. Lively1923 OK 1091, 220 P. 926

Most recent

  1. In re Estate of Stout1925 OK 988, 245 P. 868
  2. Nonnamaker v. Lively1923 OK 1091, 220 P. 926

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 1

DepthCaseCited by
Wylie v. Shutler, 1916 OK 168, 155 P. 513 5

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