Childs v. Moore

In the county court of Okmulgee county, the Interstate Land Company and James S. Moore sued Lucy Childs on contract for commissions alleged to have been earned by them as real estate brokers, for sale of certain lands belonging to the said Lucy Childs. After issue joined there was trial before a jury. On October 14, 1913, judgment was rendered in favor of plaintiffs and against Lucy Childs in the sum of $800. From which judgment an appeal was taken, and the cause is now before us on motion to dismiss. Defendants in error contend that the appeal should be dismissed for the reason that the case-made is a nullity because it was not signed and settled within fifteen days after the motion for a new trial was overruled, and that no valid order was made extending the time in which to make and serve a case-made.

After a careful reading of the record the facts appear to be that on October 15, 1913 a motion for new trial was filed, and on October 20, 1913, arguments were made on the motion and the judge stated in open court that he would overrule the same and duly enter the fact upon his bench docket. This being the status of the case and the record failing to disclose that any extension of time for making and serving case-made was granted until November 21, 1915, the appeal will be dismissed, regardless of the fact that the court attempted to enter an order on November 13, 1915 purporting to show the motion for new trial was not overruled until that date. The motion for new trial in fact being overruled on October 20, 1914, the action of the trial court in attempting to overrule the motion again was of no effect, as the matter was res judicata, and such motion did not operate to extend the time within which an extension might be granted to make and serve case-made.

A party desiring to appeal has fifteen days in which to serve a case-made after the overruling of a motion for a new trial, and unless such case-made be served within such time, or within an extension properly allowed, the appeal will be dismissed. Williams v. New State Bank, 38 Okla. 326,132 P. 1087; McCoy v. McCoy, 27 Okla. 371, 112 P. 1040.

The motion to dismiss is sustained.

All the Justices concur.