Phillips v. Dillingham

Opinion by SHARP, C.

The judgment in this case was rendered February 22, 1911, and motion for new trial filed February 24th following. This motion was heard March 29th, and, being overruled, it was by the court ordered that the plaintiff have 90 days to serve case-made, etc: From the record before us, it does not appear that the case-made was ever served on opposing counsel.

The case-made, not having been served within the time fixed by statute, or within the 90-day extension granted by the court, is invalid, and cannot be considered on appeal.

Devault et al. v. Merchants’ Exchange Co., 22 Okla. 624 , 98 Pac. 342 ;

Turley v. Hayes & Shirk, 28 Okla. 655 , 115 Pac. 769 ;

Bottoms v. Neukirchner et al., 40 Okla. 142 , 136 Pac. 774 ;

Brown-Beane Co. v. Rucker, 36 Okla. 696 , 136 Pac. 1075 ;

Veverka v. Frank et al., 41 Okla. 142 , 137 Pac. 682 ;

Todd v. Carter et al., 43 Okla. 238 , 142 Pac. 996 .

It also appears that the proceedings in error were not commenced in this court within six months after the rendition of the judgment in the trial court (as is provided by chapter 18, p. 35, Sess. Raws 1910-11, but changed to one year by section 5255, Rev.

*104 Laws 1910), and for this reason, as well as the one already considered, this court is without jurisdiction to review the judgment of the lower court.

Sumner et al. v. Sherwood, 25 Okla. 70 , 105 Pac. 642 ;

Tishomingo Electric Light & Power Co. v. Harris, 28 Okla. 10 , 113 Pac. 713 ;

State Savings Bank, etc., v. Bedden et ah, 38 Okla. 444 , 134 Pac. 20 ;

Malloy v. Johnson et al., 40 Okla. 454 , 139 Pac. 310 ;

Muskogee Electric Traction Co. v. Howenstine, 40 Okla. 543 , 138 Pac. 381 , 139 Pac. 524 ;

May v. Roberts, 40 Okla. 659 , 140 Pac. 399 .

The appeal should be dismissed.

By the Court: It is so ordered.