BIGGS v. PHIPPS

BIGGS v. PHIPPS
1936 OK 105
54 P.2d 359
175 Okla. 638
Case Number: 26258
Decided: 02/04/1936
Supreme Court of Oklahoma

BIGGS
v.
PHIPPS

Syllabus

¶0 APPEAL AND ERROR - Dismissal - Failure to Serve Case-Made Within Legal Time.
Case-made not served within statutory 15 days, or some legal extension thereof, is a nullity, and where alleged errors are reviewable only on such case-made, appeal will be dismissed.

Appeal from District Court, Carter County; John D. Ogden, Judge.

Action between J.T. Biggs and Jess Phipps, doing business as Phipps Grocery & Market No. 4. From the judgment, the former appeals. Appeal dismissed.

E.W. Schenk, for plaintiff in error.
N.E. Ticer, for defendant in error.

PER CURIAM.

¶1 The motion for new trial was overruled on October 12, 1934. The first order attempting to extend time to make and serve, case-made was on December 10, 1934, long after the statutory 15 days had expired. It is true that the court granted defendant 16 days to make appeal or supersedeas bond, and later extended the time to make this bond, but this does not operate to extend the time for making and serving case-made.

¶2 It is also true that on December 10, 1934, the court entered an order extending time to make and serve case-made 60 days from December 11th, and in said order recited that the time theretofore granted expired on December 11th. The record, however, shows no previous order extending time to make and serve case-made, and the mere recitation after the time has expired that it had been extended is insufficient.

¶3 This court has so often decided that this situation makes a consideration of the merits of the appeal impossible that any collection of the cases is unnecessary.

¶4 The appeal is dismissed at costs of plaintiff in error.

¶5 The Supreme Court acknowledges the aid of Attorneys Frank Wells and B.B. Blakeney in the preparation of this opinion. These attorneys constituted an advisory committee selected by the State Bar, appointed by the Judicial Council, and approved by the Supreme Court. After the analysis of law and facts was prepared by Mr. Wells and approved by Mr. Blakeney, the cause was assigned to a Justice of this court for examination and report to the court. Thereafter, upon consideration, this opinion was adopted.