CHESTNUTT v. PATTERSON MERCANTILE CO.

CHESTNUTT v. PATTERSON MERCANTILE CO.
1913 OK 274
132 P. 322
37 Okla. 363
Case Number: 2722
Decided: 05/06/1913
Supreme Court of Oklahoma

CHESTNUTT, Trustee,
v.
PATTERSON MERCANTILE CO.

Syllabus

¶0 APPEAL AND ERROR--Dismissal--Failure to Serve Case-Made. A party desiring to appeal has three days, by statute, in which to serve a case-made, after the overruling of the motion for a new trial has been entered; and unless such case-made is served within such time, or within the extension properly allowed by the court, the appeal will be dismissed.

Sam V. O'Hare, for plaintiff in error.
Benj. Martin, Jr., for defendant in error.

ROBERTSON, C.

¶1 Defendant in error is here insisting that this appeal should be dismissed, for the reason that this court has no jurisdiction, for that the case-made was not prepared, served, and signed within the extension of time allowed by the trial court. The record shows that the motion for a new trial was overruled November 28, 1910, and on the same day an order was entered extending the time in which to make and serve a case-made for 60 days. This is the only order ever entered extending the time. This extension expired January 28, 1911. The case was served February 20, 1911. There is what purports to be a stipulation between the parties on file, wherein they agree to an extension; but this stipulation was not presented to nor acted upon by the court. It is the province of the court to make orders extending the time in which to make and serve a case-made. Hence it necessarily follows, from the disclosure of the record as above set out, that the case-made was not prepared or served within the time fixed by law, or the order of the court, and the same is wholly insufficient to confer jurisdiction upon this court. Foulds v. Hubbard, 36 Okla. 146, 128 P. 108; Heath v. Tanner, 30 Okla. 598, 120 P. 636; Carr v. Thompson, 27 Okla. 7; 110 P. 667; Cowan v. Maxwell, 27 Okla. 87, 111 P. 388; McCoy v. McCoy, 27 Okla. 371, 112 P. 1040. For this reason the appeal should be dismissed.

¶2 By the Court: It is so ordered.