Brown v. Butler

This is an appeal by the plaintiff in error from a final order entered on the 15th day of December, 1941. The record was filed herein June 16, 1942. A motion to dismiss has been filed for the reason that the appeal was not lodged within time as provided by 12 O. S. 1941 § 972. The appeal must be dismissed.

The clerk has made a notation that the record was received on the 13th day of June, 1942, but no deposit was received until a cashier's check for $25 arrived in the clerk's office by mail on the 16th day of June, 1942.

It is the duty of the plaintiff in error to deposit $25 with the record at the time the appeal is taken. 20 O. S. 1941 § 15. A check received in the clerk's office on the 16th day of June, 1942, is not sufficient to sustain the appeal, when the final order from which the appeal is taken was entered December 15, 1941. See, in this connection, in an almost identical fact situation, Converse v. Berry, 131 Okla. 188, 268 P. 235. A case-made or record which is not filed within six months from the date of the final order from which the appeal is taken is not filed in time, and this court is without jurisdiction to entertain the appeal. Ryan v. Sarkeys, 113 Okla. 76,238 P. 426; Converse v. Berry, supra; Cummings v. Price, 88 Okla. 206, 212 P. 602; Bishop v. Harris,168 Okla. 626, 34 P.2d 243.

The appeal is dismissed.

CORN, C.J., GIBSON, V.C.J., and RILEY, OSBORN, HURST, DAVISON, and ARNOLD, JJ., concur. BAYLESS and WELCH, JJ., dissent.