Dunlap v. Western Oil Station Co. , 116 Okla. 165 ( 1926 )

Order dissolving the temporary injunction in this case was entered by the trial court April 26, 1924, and in the journal entry of said order, there is a further order of the trial court purporting to extend the time for preparing and serving case-made for a period of 90 days from the entry of such order. Thereafter other orders were entered by the trial court further extending the time for making and serving case-made, and the record shows that the case-made was thereafter served October 15, 1924, and that the petition in error was filed in this court October 28, 1924.

Defendants have filed in this court their motion to dismiss this proceeding, for the reason that the proceeding was not lodged in this court within 30 days after the entry of the order to review which this proceeding in error was commenced, as required to be done by Comp. Stat. 1921, section 809. It appears that on March 17, 1925, this motion of defendants to dismiss was denied by this court by a pro forma order, but at the time of the entry of such order, the cause had not been briefed upon its merits and was not ready for submission. Thereafter the cause was briefed and submitted and in regular order is now ready for disposition.

The motion to dismiss is well taken and must be sustained. Beginning in territorial days the Supreme Court of the territory of Oklahoma and this court as its successor, without a break in the line of authorities, has uniformly held that the requirement of section 809, Id., mandatory, and that a compliance therewith in this character of proceeding is essential to confer jurisdiction on this court. In the case of Herring et al. v. Wiggins, 7 Okla. 312,54 P. 483, Justice Burford announced the rule which has been uniformly followed since:

"A party who procures a temporary injunction to issue may appeal from an order of the judge made in chambers modifying such temporary injunction, under the provisions of section 4463, St. Okla. 1893; but the petition in error must be filed in the Supreme Court within 30 days from the date of such order, and the court or judge has no power to extend or enlarge such time."

This holding by Justice Burford has been followed by this court since statehood. First National Bank of Hobart v. Spink,21 Okla. 468, 97 P. 1019; Pioneer Telephone Telegraph Co. v. Incorporated Town of Chelsea. 23 Okla. 720, 102 P. 83; Kennedy Mercantile Co. v. Dobson et al., 40 Okla. 306,137 P. 147; Harn v. Oklahoma City et al., 43 Okla. 501, 148 P. 1040; Bayles-Fulkerton Co. v. Freeman, 45 Okla. 798, 146 P. 1082; Moore et al. v. City of Perry et al., 110 Okla. 8,234 P. 625.

For the reason that the case-made in the instant action was not served, nor the petition in error filed in this court within 30 days from the date of entering the order dissolving the temporary injunction herein, and upon the authorities above cited, the motion to dismiss this proceeding must be and is sustained. Proceeding dismissed.

By the Court: It is so ordered.