Brockhaus v. Aetna Bldg. & Loan Ass'n

It appears that judgment was rendered and motion for a new trial overruled in this cause on February 28, 1920, and on said day the trial court entered an order giving defendants 30 days in which to make and serve a case-made upon the plaintiff, and the plaintiff was given ten days in which to suggest amendments thereto, said case-made to be signed and settled upon five days' written notice by either party. On March 23, 1920, the defendants served the case-made upon the plaintiff, and at the same time gave notice in writing that said case-made would be presented to the trial judge for settlement, allowance, and signature on the 5th day of April, 1920, which was several days prior to the expiration of the time granted for suggesting amendments. The case-made was signed and settled in pursuance of the written notice, in the absence of the attorney or other representatives of the plaintiff, and without any waiver by it of the suggestion of amendments. The defendant in error now moves to dismiss the appeal upon the ground that the time allowed by the trial court for suggesting amendments to the case-made had not expired at the time said case-made was signed and settled.

This case is identical with Brockhaus v. Aetna Building Loan Association, 79 Okla. 270, 192 P. 1094, wherein it was held that the time allowed by the trial court for suggesting amendments to a case-made commences to run from the expiration of the period of extension, and not from the date of the service of the case-made, and under the authority of that case the appeal is dismissed.

HARRISON, C. J., and JOHNSON, McNEILL, and ELTING, JJ., concur.