WHELCHEL v. WHELCHEL

WHELCHEL v. WHELCHEL
1943 OK 25
133 P.2d 192
192 Okla. 3
Case Number: 30910
Decided: 01/19/1943
Supreme Court of Oklahoma

WHELCHEL
v.
WHELCHEL

Syllabus

¶0 APPEAL AND ERROR - Appeal dismissed where no notice of intention to appeal given within ten days.
The notice of intention to appeal as provided by 12 O. S. 1941 § 954 must be given within ten days from the date of the judgment or order from which the appeal is taken; and where no showing is made that the notice of appeal was given within said time, this court is without jurisdiction to review the order and the proceeding based thereon will be dismissed.

Appeal from District Court, Custer County; W. P. Keen, Judge.

Divorce action by Carrie Whelchel against J. D. Whelchel. From an order of the trial court sustaining demurrer to defendant's petition to vacate the judgment for plaintiff, defendant appeals. Dismissed.

J. Howard Lindley, of Fairview, for plaintiff in error.
Meacham, Meacham & Meacham, of Clinton, for defendant in error.

ARNOLD, J.

¶1 This is a proceeding to reverse an order of the trial court entered on the 18th day of November, 1941, sustaining a demurrer to a motion to vacate a divorce judgment. The appeal was filed herein on April 14, 1942. A motion to dismiss the appeal has been filed alleging that no notice of intention to appeal was given as required by law. It is admitted that no attempt to give notice of intention to appeal was filed or made until December 1, 1941. The only judgment or order entered in the case from which the plaintiff in error purports to appeal is the order of the 18th day of November, 1941. The record discloses that at the time said order was entered the trial court attempted to give the plaintiff in error 15 days from that date in which to elect to appeal or amend his motion. In this connection it is contended by plaintiff in error that the notice of intention to appeal, given within the extended time of the court, is sufficient.

¶2 12 O. S. 1941 § 954 provides that the party desiring to appeal shall give notice in open court either at the time judgment is rendered or within ten days thereafter of his intention.

¶3 The trial court did not have the power or authority to extend the time fixed by the foregoing provision of our statute. It being without such power and the notice of appeal not having been given as provided by law, this court is without jurisdiction of the subject matter and the appeal should be dismissed. See Farmers Union Co-operative Ass'n v. Strong, 98 Okla. 210, 244 P. 692; State v. State ex ref. Shull, 142 Okla. 293, 286 P. 891; Nichols v. Lonsdale, 109 Okla. 59, 234 P. 753; Little v. Employer's Casualty Co., 180 Okla. 628, 71 P.2d 687.

¶4 The appeal is dismissed.

¶5 CORN, C. J., GIBSON, V. C. J., and RILEY, WELCH, HURST, and DAVISON, JJ., concur. OSBORN and BAYLESS, JJ., absent.