EARNEST v. SERAN

EARNEST v. SERAN
1926 OK 311
245 P. 619
117 Okla. 128
Case Number: 16312
Decided: 04/06/1926
Supreme Court of Oklahoma

EARNEST
v.
SERAN et al.

Syllabus

¶0 Appeal and Error--Time for Appeal from Order Dissolving Temporary Restraining Order. A proceeding in error for the purpose of reviewing an order dissolving a temporary restraining order and disallowing injunctive relief will be dismissed when the petition in error is not filed with the clerk of the Supreme Court within 30 days after the making of such order.

White, Nichols & Woods, for plaintiff in error.
Phillips, Douglas & Duling and Stephenson, Proffit & Stephenson, for defendants in error.

WILLIAMS, C.

¶1 The parties herein will be referred to as they appeared in the trial court. This is an appeal from an order dissolving a temporary restraining order and refusing to grant plaintiff a temporary injunction. The record shows that the order dismissing the temporary restraining order and denying plaintiff a temporary injunction was made on the 28th day of February, 1925. Motion for new trial was filed on the date of the judgment, and overruled on said date. The certificate of the trial judge settling the case-made was signed on the 2nd day of April, 1925, and the certificate of the clerk attesting the same was signed on the 3rd day of April, 1925. The case-made was filed with the clerk of the court on said 3rd day of April, and was filed with the clerk of the Supreme Court on the 20th day of April, 1925. Motion was filed by the plaintiff to dismiss the appeal for the reason that the same was not filed in the Supreme Court in time. Section 809, C. O. S. 1921, provides that case-made must be filed in the Supreme Court within 30 days from the modification of the injunction. The above section has been construed in the case of Harn v. Oklahoma City et al., 43 Okla. 501, 148 P. 1040, the syllabus reading as follows:

"The petition in error in an appeal from an order discharging a temporary injunction must be filed in the Supreme Court within a time fixed by the trial court, not exceeding 30 days from such discharge."