Southern Surety Co. v. Smith , 74 Okla. 313 ( 1917 )

This is an action brought by the defendant in error against plaintiff in error to recover upon a bond executed as surety for a guardian. There was judgment for defendant in error in the sum of $1,600, and interest, to which plaintiff in error duly excepted. Motion for new trial was timely filed, overruled, said action of the court duly excepted to, and error brought to this court.

Motion is made to dismiss the appeal upon the ground that it does not affirmatively appear from the record that the case-made was served within the time fixed for service thereof, and upon other grounds which we deem unnecessary to consider. A careful examination of the record does not disclose that the case-made was served upon the defendant in error within the time allowed by the court or was served at any time. The letter of the attorney for defendant in error to attorney for plaintiff in error, relied upon by plaintiff in error as proof of the time of service of said case-made, is too indefinite to constitute proof of service of the case-made. Besides, said letter was not written until after the expiration of time fixed for service of the case-made, at a time that the trial court could not have legally extended the time for serving a case-made, a time fixed therefor having expired. The case-made is a nullity, and confers no jurisdiction upon this court, and is not certified as a transcript.

"A purported case-made which is not served within the statutory time after the judgment appealed from is entered, or within an extension of time duly allowed, is a nullity, and cannot be considered by the Supreme Court." Navarre v. Finerty,56 Okla. 218, 154 P. 1143; Powell v. First State Bank of Clinton, 56 Okla. 44, 155 P. 500.

"An order or orders, purporting to grant an extension of time in which to serve case-made for appeal to the Supreme Court, made after the expiration of the time or times formerly allowed, is and are nullities, and appeal based upon service of case-made thereunder will be dismissed." Morgan v. Board of Commissioners of Logan County, 59 Okla. 290, 159 P. 514.

It follows that the appeal must be dismissed.

By the Court: It is so ordered.