Blackwelder v. Naylor

439 P.2d 202 (1967)

P.W. BLACKWELDER, Edwin Milton Good and Anna L. Crouch, Plaintiffs in Error,
v.
Chester NAYLOR, Executor of the Last Will and Testament of Ava M. Blackwelder, Deceased, Defendant in Error.

No. 42648.

Supreme Court of Oklahoma.

October 27, 1967.

Frank E. Hensley, Tryon, Sweet & Hensley, Guymon, for plaintiffs in error.

Vincent Dale, Dale, Dale & Belanger, Guymon, Charles Vance, Vance, Hobble, Nordling & Sharp, Liberal, Kan., for defendant in error.

LAVENDER, Justice.

This cause comes on for adjudication on the motion to dismiss by the defendant in error and the responsive application thereto by the plaintiff in error. The ground for said motion is that these proceedings were not commenced within the time provided for by statute.

The case made attached to the petition in error was settled in the court below on June 22, 1967. The petition in error with case made attached was not filed in this court until August 31, 1967. The controlling statute, 12 O.S.Supp. 1963 § 972(a) requires all proceedings in this court by case made to be commenced within twenty days from the date the case made is settled, and in all cases such appellate proceedings shall be commenced within six months from the date of the judgment or final order complained of.

This court in DeWees v. Cedarbaum, Okl., 381 P.2d 830, by an opinion which became final May 13, 1963, construed 12 Ohio St. 1961, § 962 as authorizing an extension of time for the filing of a proceeding in error limited only by the maximum time allowed for the commencement of such proceedings as provided by 12 Ohio St. 1961, § 972.

The legislature amended § 962, supra, by the adoption of 12 O.S.Supp. 1965 § 962(a) which deleted the authority to extend the time for the filing of proceedings in error and retained the following language, "* * [T]his section shall in no manner be construed as affecting the statutes fixing the limit of time within which an appeal or proceeding in error may be begun in the appellate court."

Therefore, this court is of the opinion that pursuant to 12 O.S.Supp. 1967 § 972(a) proceedings in this court by case made must be commenced within twenty days from the date the case made is settled in the trial court and that such time may not be extended by either this court or the trial court.

An appeal must be brought within the time and in the manner provided by statute and if not the same will be dismissed. Reed v. Moore, Okl., 386 P.2d 763; Albert v. Card, Okl., 317 P.2d 766.

Considering the opinion of this court that it does not have jurisdiction of this cause, the application of the plaintiff in error for leave to withdraw the case made will not be considered.

Appeal dismissed for lack of jurisdiction.

All the Justices concur.