SWANSON v. BAYLESS

SWANSON v. BAYLESS
1915 OK 609
151 P. 683
51 Okla. 37
Case Number: 4840
Decided: 09/07/1915
Supreme Court of Oklahoma

SWANSON
v.
BAYLESS et al.

Syllabus

¶0 1. APPEAL AND ERROR--Parties. All persons who are parties to the proceedings in the trial court, and whose interest will be adversely affected by a reversal of the judgment, must be brought into the appellate proceedings.
2. APPEAL AND ERROR--Case-Made--Time for Making and Serving--Dismissal. Where the order extending time to make and serve case-made allows case to be settled upon four days' notice, and the case is settled upon two days' notice, without an agreement or waiver of time by adverse party appearing and suggesting amendments, it is insufficient, and authorizes a dismissal of the appeal.
3. SAME--Time for Serving--Extensions. Where the extensions of time granted by the court or judge have expired, such court or judge is without power to extend the time for serving a case-made, and a case-made served, settled, and signed after the expiration of the time is a nullity.

Allen & Latimer, for plaintiff in error.
Emanuel & Broadbent, Geo. M. Nicholson, and Gray & McVay, for defendants in error.

McKEOWN, C.

¶1 The judgment rendered in the trial court on August 15, 1912, was against the plaintiff, Emil Swanson, to the effect that he take nothing, and in favor of the interveners, against one of the defendants, Sulphur Electric & Refrigerating Company, for the sum of $ 31,327.14. Likewise there was judgment in favor of the interveners, E. G. Bayless, C. J. Webster, T. E. Molacek, and Mrs. W. B. Womack, against V. A. Swanson, plaintiff in error, for the same amount, and ordering the receiver to pay all funds in his hands to the interveners. Neither Emil Swanson nor the Sulphur Electric & Refrigerating Company was made a party to this appeal. Case-made was not served upon them, nor has any appearance or waiver thereof been entered in this court. We are of the opinion that they are necessary parties to this appeal. "Where a judgment is joint, all persons against whom it is rendered and who would necessarily be affected by a reversal must be served with the case-made, unless the same be waived, and given notice of the time and place of settling and signing the case-made, unless the same be waived, or they appear, and must be made parties to the appeal; and when such presentation is not made, and such notice is not given, nor the same waived, nor an appearance made, and such parties are not made parties to the appeal, this court is without jurisdiction to hear such appeal." (Coss et al. v. Sterritt, 49 Okla. 446,

"That said interveners Bayless and Webster et al. have presented no amendments to the case-made within the time allowed them by the orders of the court."

¶2 In Martindale et al. v. Richard Shaha, post, p. ,

"Defendant in error has a right to notice of the time and place of settlement of case-made, and the certificate of the trial judge in settling the case, which fails to show the presence of the defendant in error, either in person or by attorney, or that the right to be present is waived, is fatally defective."

¶3 The certificate of the trial judge contains no recitation as to appearance by defendant in error, or as to waivers of any kind. It is true that the service of the notice appears in the case-made, but it was insufficient notice, as hereinbefore stated. Aside from the grounds of the motion to dismiss, the transcript of the record discloses the fact that plaintiff in error failed to serve his case-made within the time granted by orders of the trial judge. The first order of extension was for 90 days from August 27, 1912, which would have expired on November 24, 1912, instead of the 27th, as recited in the second order of extension. The second order extending the time 60 days was made and entered November 14, 1912, which was within time, and likewise the third order extending time for 15 days, was made on January 20, 1913, and filed on the 24th, and was in time; but the fourth order, extending time four days from February 11, 1913, was made on February 10, 1913; whereas, the 165 days theretofore granted from August 27, 1912, in the three orders extending time within which to serve case-made, had expired on February 8, 1913. Therefore it follows that the last order extending time was void and of no effect having been made after the time had expired, with no recitation in said order setting out any unavoidable casualty or misfortune, preventing the order from being made in ample time. Where the extension of time granted by the district court, or judge thereof, has once expired, such court or judge has no power to extend the time for serving a case-made, and a case-made served, signed, and settled after the expiration of time is void. Bray v. Bray, 25 Okla. 71,

¶4 By the Court: It is so ordered.