ROURKE v. BEVIS

ROURKE v. BEVIS
1929 OK 162
276 P. 482
136 Okla. 76
Case Number: 20074
Decided: 04/09/1929
Supreme Court of Oklahoma

ROURKE
v.
BEVIS et al.

Syllabus

¶0 1. Appeal and Error--Case-Made--Order Extending Time Invalid Where Made After Expiration of Time Formerly Fixed.
An order extending the time for making and serving case-made, made after the expiration of the time fixed by a former order of the court or trial judge, is void.
2. Same--Construction of Words "This Date" in Order of Extension.
When the court makes an order on a certain day and says, "It is ordered that an extension of 60 days from 'this date' be granted said defendant to make and serve case-made, * * *" the words "this date" mean the date upon which the order was made.
3. Same--Dismissal of Appeal Where Case-Made not Made and Served in Time.
Where plaintiff in error fails to make and serve case-made within the time allowed by statute or within the time as extended by a valid order of the court, the same is a nullity and on motion the appeal will be dismissed.

Error from District Court, Oklahoma County; T. G. Chambers, Judge.

Action between S. A. Rourke and O. H. Bevis et al. Judgment for the latter, and the former brings error. Appeal dismissed.

J. O. Whiteside, for plaintiff in error.
Mont F. Highley and L. D. Threlkeld, for defendants in error.

PER CURIAM.

¶1 This is an appeal from the judgment of the district court of Oklahoma county rendered on the 29th day of June, 1928, in favor of the defendants in error and against the plaintiff in error. The motion for new trial filed in said cause was overruled on the 7th day of July, 1928, at which time the plaintiff in error gave notice of appeal and procured an order of the court extending the time 60 days from that date in which to make and serve case-made. The time thus extended in which to make and serve case-made expired on the 5th day of September, 1928. Thereafter, on the 6th day of September, 1928, the trial court made an order extending the time in which to make and serve case-made; various other orders extending such time were thereafter made. The case-made was served on the 3rd day of January, 1929.

¶2 The defendants in error have filed in this court their motion to dismiss the appeal for the reason the case-made was not served within the time allowed by law or any valid order of the court extending the time therefor; it being the contention of the defendants in error that the order made on September 6, 1928, extending the time in which to make and serve case-made is void for the reason it was not made until after the time given in previous orders had expired.

¶3 The trial court was without jurisdiction to make the order of September 6, 1928, for the reason the time extended in the order made on July 7, 1928, had expired, and such order is void. Petty et al. v. Foster, 122 Okla. 152, 252 P. 836; Tanner v. Crawford. 80 Okla. 183, 195 P. 138; Lovejoy v. Graham, 33 Okla. 129, 124 P. 25.

¶4 The plaintiff in error has responded to the motion to dismiss and urges that the first order extending time to make and serve case-made began to run at the expiration of the statutory 15-day period, and that in this case the trial court had jurisdiction until September 20, 1928, in which to make an order extending the time.

¶5 It is observed that the order of the trial court made on the 7th day of July, 1927, contains this language, "It is ordered that an extension of 60 days from this date be granted said defendant to make and serve case-made." This court in the case of Petty et al. v. Foster et al., supra, held that the words "this date," incorporated in an order extending time in which to make and serve case-made mean the day on which the order was made. See, also, Harrison v. Reed, 81 Okla. 149, 197 P. 159.