Morris v. Caulk

*343 Opinion by BREWER, C.

The defendant in error in the above styled cause filed in this court on October 28, 1914, a motion to dismiss the appeal, alleging three specific reasons therefor, among them the following:

“Second. The case-made does not contain an order overruling the motion for new trial.

“Third. The case-made was not served within three days after the motion for new trial purports to have been overruled, and contains no order extending the time to make and serve a case-made beyond the statutory three days, and this court has no jurisdiction to review the errors alleged.”

We have examined the record before us, and believe that both points are well taken. On the first point mentioned, while it is true that there is a recital in the case-made that the motion for a new trial was in fact overruled and excepted to, yet it appears therein merely as a recital, and there is no order of court exhibited to such effect. On the second point, there is also a recital in the case-made that the court allowed plaintiff in error 90 days to make and serve the case-made, etc.,, but this is also' nothing more than a mere statement, and does not show to be an order of court, or that same was ever entered in the journals, or the order therefor signed and filed with the clerk as required. The appeal should be dismissed. On first point, see Ford v. McIntosh, 22 Okla. 423 , 98 Pac.

341; Olentine v. Powell, 23 Okla. 363 , 100 Pac. 556 . On second point, see Nelson v. Pittsburg Mtg. Inv. Co., 43 Okla. 208 , 141 Pac. 1197 ;

Waggoner v. Mounts el al., ante, 143 Pac. 1196 ;

Springfield F. & M. Ins. Co. v. Gish, Brook & Co., 23 Okla. 824 , 102 Pac. 708 ;

Ellis v. Carr, 25 Okla. 874 , 108 Pac. 1101 ;

Casner v. Smith, 28 Okla. 303 , 114 Pac. 255 ;

Fife v. Cornelous, 35 Okla. 402 , 124 Pac. 957 . Also see Mobley v. C., R. I. & P. Ry. Co. post, and a long list of cases cited.

By the Court; It is so ordered.