Shinn v. Oklahoma City Bldg. & Loan Ass'n , 130 Okla. 173 ( 1928 )

Judgment was rendered in the above-entitled cause against the plaintiffs in error, who were defendants below, on the 16th day of March, 1927. Thereafter, on the 19th day of March, 1927, the defendants filed their motion for a new trial. The appeal is by petition in error with case-made attached. The case-made filed in this court does not contain an order of the trial court overruling the motion for new trial, the only showing made that the motion for new trial was in fact overruled is by mere recital in the case-made to that effect.

This court has held that where the record does not contain an order of the court overruling the motion for new trial, a mere recital in the case-made that the motion was in fact overruled and exceptions allowed is insufficient to bring the alleged errors before this court for review, and in the absence of such an order there is nothing properly before the court. Lillard v. Meisberger, 113 Okla. 228, 240 P. 1067; City of Tulsa v. Kay,124 Okla. 243, 255 P. 684. Defendants have responded to this motion to dismiss in this cause and cite the case of St. Louis S. F. Ry. Co. v. Taliaferro, 58 Okla. 585, 160 P. 610, to support the recital in the case-made that the motion for new trial was overruled, as sufficient. That case is easily distinguished from the case at bar and the cases above cited for the reason the court had before it at that time the question of the necessity of the case-made to affirmatively show orders extending time in which to make and serve case-made were of record in the journal of the trial court, orders which this court is not required to review upon the merits of the case, and for that reason the rules of procedure laid down in that case do not apply to the case before us.

Another reason assigned in the motion to dismiss the appeal in this case is that the case-made was served after the time allowed by law or any valid order of the court had expired, and the case-made therefore is a nullity. An order was made by the trial court on the 31st day of March, 1927, extending the time in which to make and serve case-made for a period of 60 days, which extended the time in which to make and serve case-made to June 14, 1927. On May 26, 1927, an order was made extending the time before granted 60 days; this order expired on August 13, 1927; on July 21, 1927, a further extension of 30 days was allowed by the trial court; this order expired on September 12, 1927, and on August 26, 1927, the court granted a further extension of time of 23 days in which to make and serve case-made. This order extended the time beyond the six months' time allowed by law in which to perfect this appeal, which expired on September 30, 1927, and for that reason this order is void. State Exchange Bank v. National Bank of Commerce,70 Okla. 220, 169 P. 482. On the 19th day of September, 1927, an order was made further extending the time 20 days, but on the 20th day of September, 1927, an order was made setting aside and striking from the files this last-mentioned order and an extension of 4 days in which to make and serve case-made was made. The order of the court made on the 20th day of September, 1927, extending time is void for the reason that the same was not made within the time allowed by any valid order of the court in which to make and serve case-made. Petty v. Foster, 122 Okla. 152,252 P. 836; Bass v. Dowd, 81 Okla. 212, 197 P. 513; Tanner v. Crawford, 80 Okla. 183, 195 P. 138. As above stated, the time in which to serve case-made, as extended by valid orders of the court, expired on September 12, 1927. The case-made was served upon the defendant in error on the 24th day of September, 1927, 12 days after the time allowed by a valid order of the court had expired. For this reason the case-made is a nullity and brings nothing before this court for review. Petty v. Foster, supra; Harrison v. Reed, 81 Okla. 149, 197 P. 159.

The purported record filed in this appeal is not certified by the clerk of the trial court as a transcript, and therefore cannot be considered as such. Dickerson v. Botchleott,122 Okla. 252, 254 P. 80; State Bank v. Weaber, 125 Okla. 186,256 P. 50. The case-made being a nullity and the purported record not being certified by the clerk of the trial court, there is nothing before this court for review, and the appeal is hereby dismissed.