Hutchins v. Sperling

316 P.2d 589 (1957)

Robert L. HUTCHINS, Lula Belle Hutchins, John M. Tetens and Gwen L. Tetens, Plaintiffs in Error,
v.
Edgar M. SPERLING and Oma V. Sperling, Defendants in Error.

No. 37354.

Supreme Court of Oklahoma.

March 12, 1957. Rehearing Denied May 28, 1957. Application for Leave to File Second Petition for Rehearing Denied October 15, 1957.

Fletcher S. Riley, Oklahoma City, Jay D. Jones, Duncan, Charles G. Ozmun, Lawton, for plaintiffs in error.

Godlove & Cummins, Ralph H. Cline, Lawton, for defendants in error.

PER CURIAM.

The record reveals that the order overruling the plaintiffs' in error motion for new trial was entered November 30, 1955. The petition in error with case-made attached was filed in this Court May 8, 1956. On January 21, 1956, an order was entered extending the time in which to perfect an appeal until March 1, 1956. Thereafter, on February 27, 1956, a second order was entered extending the time until April 30, 1956, both to make and serve case-made and to file appeal. The case-made, after service and notice, was finally settled on April 23, 1956. No further order extending the time in which to appeal is contained in the case-made.

It is apparent that this Court has no jurisdiction to hear and determine this case on appeal. The petition in error was not filed within three months from the date of the judgment or final order or within the time granted by an authorized extension of time in which to appeal. 12 Ohio St. 1951, § 972. This is a jurisdictional requirement that cannot be waived by the parties or overlooked by the Court. This Court will, upon its own motion, determine if its jurisdiction has been invoked. State ex rel. State Highway Commission v. Asendorf, 203 Okl. 263, 220 P.2d 272. If jurisdiction has not been acquired the appeal will be dismissed.

Appeal dismissed.

The Court acknowledges the aid of the Supreme Court Commissioners in the preparation of this opinion. After a tentative opinion was written by Commissioner James H. Nease and approved by Commissioners Jean R. Reed and J.W. Crawford, the cause was assigned to a Justice of this Court for examination and report to the Court. Thereafter, upon report and consideration in Conference, the foregoing opinion was adopted by the Court.

CORN, V.C.J., and HALLEY, JOHNSON, WILLIAMS, BLACKBIRD and CARLILE, JJ., concur.

WELCH, C.J., and DAVISON, J., dissent.