Universal Automobile Ins. Co. v. Bryant

PER CURIAM.

This is an appeal from the judgment of the district court of Marshall county in an action wherein plaintiff in error was defendant and defendant in ■error was plaintiff; parties will be referred to hereinafter as they appeared in the •trial court.

The judgment appealed from was rendered on the. 7 th day of May, 1928, and the motion for new trial was on the same day overruled, at which time notice of appeal was given, and the defendant was given 90 days from and after) the time allowed by law within which to make and serve case-made upon the plaintiff. On August 3, 1928, by order of the court the time in which to serve ease-made was extended 60 days in addition to the time already granted. The time thus granted in which to: serve case-made expired October 19, 1928. On October 3, 1928, the court made an order granting a further extension of time of 20 days in addition to the time theretofore granted in which to prepare and serve case-made; this time expired on November 8, 1928, on'e day after the time in which to file the appeal in this court expired, on November 7, 1928.

Section 789, C. O. S. 1921, provides the court in which any case is tried may from time to time make orders extending the time for making and serving case-made, but not beyond the period in( which the proceedings in error may be filed in the appellate court, and under the rule announced by this court in the case of Saxon v. Green, 131 Okla. 15 , 267 Pac. 465 , Shinn v. Oklahoma City Building & Loan Ass’n, 130 Okla. 173 , 2616 Pac. 435 , and eases cited therein, the order of the court made in this cause on October 3, 1928, is void for the reason the time granted therein in which to prepare and serve case-made extended beyond the period, in which proceedings in error could, by law, be filed in this court.

The time granted the defendant in which to prepare and serve ease-made on August 3, 1928, the) last valid order of the court, expired on October 19, 1928. The case-made was not served upon the .plaintiff until October 23, 1928, and therefore was not served within the tim’e fixed by law or valid order of the court, and under the rule announced in the case of Petty v. Foster, 122 Okla. 162 , 252 Pac. 836 , Rawleigh Co. v. Mills, 117 Okla. 283 , 246 Pac. 614 , Harrison v. Reed, 81 Okla. 149 , 197 Pac. 159 , and cases cited therein, the case-made in this case is a nullity and brings nothing- before this court for review, and upon motion the appeal is dismissed.

Note.—See “Appeal and Error.” 4 C. J. §1992, p. 350, n. 4; §1997, p. 35.2, n. 25.