MABEN v. TULSA MOTOR SEC. CORP.

MABEN v. TULSA MOTOR SEC. CORP.
1931 OK 2
299 P. 849
149 Okla. 146
Case Number: 21821
Decided: 01/06/1931
Supreme Court of Oklahoma

MABEN
v.
TULSA MOTOR SECURITY CORP.

Rehearing Denied June 9, 1931

Syllabus

¶0 1. Appeal and Error--Case-Made--Invalidity of Order Extending Time Made Without Notice and After Expiration of Time Formerly Fixed.
An order extending the time for making and serving case-made, made without notice and after the expiration of the time fixed by a former valid order of the court or trial judge, is void.
2. Same--Nullity of Case-Made--Dismissal.
Where plaintiff in error fails to make and serve case-made within the time allowed by law or within the time as extended by valid order of the court, the same is a nullity and on motion the appeal will be dismissed.
3. Same--Recital in Judge's Certificate Negatived by Record.
The certificate of the trial judge to a case-made is not a verity, but is only prima facie evidence of the facts recited in said certificate, and where the recital in the certificate is shown by the record to be erroneous, the record will control.

Error from Court of Common Pleas, Tulsa County; Wm. N. Randolph, Judge.

Action by the Tulsa Security Corporation against Marguerite Maben. From the judgment in favor of the plaintiff, defendant appeals. Dismissed.

Frank Leslie, for plaintiff in error.
J. C. Pinkerton and Hess Crossland, for defendant in error.

PER CURIAM.

¶1 This is an appeal from an order and judgment of the court of common pleas of Tulsa county made and entered on the 19th day of April, 1930, in an action wherein plaintiff in error was defendant, and from which order and judgment defendant appeals.

¶2 At the time of the making of the order appealed from an order was made giving the defendant 30 days in which to make and serve case-made. Subsequent orders were made extending such time, and on the 19th day of July, 1930, an order was made extending the time to make and serve case-made 20 days from that date. The time as allowed by the order of July 19, 1930, expired on August 8, 1930. On August 9, 1930, without notice to the opposite party as required by section 789, C. O. S. 1921, an order was made extending the time to serve case-made 5 days from August 9, 1930. Thereafter other orders were, without notice to the opposite party, made extending the time for serving case-made. The case-made was served on the defendant in error on September 27, 1930, and was settled and signed October 9, 1930. The certificate of the trial judge to the case-made recites the case-made was duly made and served within the time fixed by the order of the court and in the time, manner, and form provided by law.

¶3 The defendant in error has filed its motion to dismiss the appeal upon the grounds the case-made is a nullity and brings nothing before the court for review for the reason the order made on August 9, 1930, extending the time in which to make and serve case-made is void, the same having been made after the expiration of the time allowed by law and the previous orders of the court in which to serve case-made.

¶4 An order extending the time for making and serving case-made, made without notice and after the expiration of the time fixed by a former valid order of the court or trial judge, is void. Shinn v. Oklahoma City Building & Loan Ass'n, 130 Okla. 173, 266 P. 435; Petty v. Foster, 122 Okla. 152, 252 P. 836; Nonnamaker v. Lively, 96 Okla. 149, 220 P. 926; Bass v. Dowd, 81 Okla. 212, 197 P. 513. The order made on August 9, 1930, having been made after the expiration of the time allowed in previous orders, was void and did not extend the time in which to serve case-made. The case-made served on September 27, 1930, not within the time allowed by law or a valid order of the court, is a nullity, and brings nothing before the court for review. Shinn v. Oklahoma City Building & Loan Ass'n, supra; Petty v. Foster, supra; Harrison v. Reed, 81 Okla. 149, 197 P. 159. The purported record presented clearly shows the recital in the certificate of the trial judge that the case-made had been duly served within the time fixed by order of the court is erroneous, and in such case the record will control. Town v. Crawford, 106 Okla. 254, 234 P. 208.