Haines v. Casaver

The plaintiffs in error seek to present their proceeding in error by case-made duly signed and settled by the trial court. The defendants in error move to dismiss the proceeding in error upon the ground that the case-made filed therein affirmatively shows that the motion for a new trial of the losing party was overruled by the trial court on the 25th day of March, 1913, and that the judgment attempted to be appealed from was rendered on the same day, whereupon and as a part of such judgment, the court granted said plaintiffs in error 90 days within which to make and serve a case-made, allowing said defendants in error ten days thereafter to suggest amendments; said case-made to be signed and settled upon five days' notice by either party; that the record affirmatively shows that said case-made was served on said defendants in error on the 25th day of June, 1913, two days after the expiration of the time granted by the trial court for making and serving case-made.

This contention is well taken. The time granted by the trial court for making and serving a case-made expired on the 23d day of June, 1913, two days prior to the service thereof upon opposing counsel. It has many times been held by this court that a purported case-made, which has not been served within three days after the judgment or order appealed from is entered, nor within an extension of time allowed by the trial court, or the judge thereof, is a nullity, and will not be considered by the Supreme Court on appeal. The latest case supporting this rule called to our attention is Kinney v.McPherren, 42 Okla. 209, 140 P. 1149, wherein it was held that:

"A purported case-made, which is not served within three days after the judgment or order is entered, nor within an extension of time duly allowed, is a nullity, and cannot be considered by this court."

The case-made not having been served within the time granted, the motion to dismiss the proceeding in error must be sustained. It is so ordered.

All the Justices concur.