Nelson v. Pittsburg Mortgage Investment Co.

KANE, C. J.

This cause comes on to be heard upon the motion to dismiss upon the ground, among others, that “the order extending time to make, serve, and file a case-made was not itself filed in the district court until after the time therein granted and extended had expired; and the same was not a part of the case-made when served.” This ground is sufficient. In the case of Springfield F. & M. Ins. Co. v. Gish, Brook & Co., 23 Okla. 824 , 102 Pac. 708 , which was followed in Ellis et al. v. Carr, 25 Okla. 874 , 108 Pac. 1101 , it was held:

“Section 533 (section 4731) of the Code requires that all orders made out of court shall forthwith be entered by the clerk in the journal of the court in the same manner as orders made in term. A purported order, extending the time in which to make and serve a case-made which has never been filed in the trial court as a part of the record therein, is not entitled to be made a part of the case-made, and is of no effect in this court. Since it fails affirmatively to show in the case-made that the purported order of April 21, 1908, was ever made by the court or judge, or that the same was ever filed in the court below or entered of record as required by said section of the statute, it is without force.”

For the reason stated, the motion to dismiss must be sustained.

All the Justices concur.