Mitchell v. Great Western Oil and Gas Company , 1959 Okla. LEXIS 538 ( 1959 )

HALLEY, Justice.

This is an appeal by case-made from the District Court of Pontotoc County. The case-made was settled on the 5th day of November, 1958, and the appeal was filed in this Court on December 19, 1958.

A motion to dismiss has been filed for the reason that the case-made was not filed within twenty days as provided by 12 O.S.1957 Supp. § 972. The motion must be sustained. Video Independent Theatres, Inc. v. Walker, Okl., 308 P.2d 958; Smith v. Independent School District No. 16, Payne County, Okl., 321 P.2d 430, 431.

Plaintiffs in error argue that the trial court extended the time to appeal to December 21, 1958, and the appeal was filed on December 19, 1958, which was prior to the expiration of the six month period authorized by 12 O.S.1957 Supp. § 972. A similar argument was made in Smith v. Independent School District No. 16, Payne County, supra. Therein we stated:

“12 O.S.1955 Supp. § 972, requires that an appeal by case-made be filed in this court within 20 days from the date the case-made is settled and, also requires that such appeal be filed within three months from the date of the rendition of the judgment or final order complained of (or lawful extension of such period). Both of such requirements must be met in order to vest this court with jurisdiction of the appeal. In practical effect, this means that an appeal by case-made must be filed in this court before the expiration of 20 days from the date case-made is settled or the expiration of three months from the rendition of the judgment or final order complained of (or lawful extension of such period), whichever occurs first.”

Under Section 962, 12 O.S.Supp. 1959, the trial court cannot stay the time for filing an appeal beyond twenty days from the settlement of case-made as provided in Section 972, because this Section 962 provides in paragraph (a) as follows:

“ * * * but this section shall in no manner be construed as affecting the statutes fixing the limit of time within which an appeal or proceeding in error may be begun in the appellate court.”

Appeal dismissed.

WILLIAMS, V. C. J., and BLACKBIRD, JACKSON, IRWIN and BERRY, JJ-, concur. DAVISON, C. J., and WELCH and JOHNSON, JJ., dissent.