BROWN v. BUTLER

BROWN v. BUTLER
1944 OK 109
146 P.2d 1010
194 Okla. 46
Case Number: 31005
Decided: 02/29/1944
Supreme Court of Oklahoma

BROWN
v.
BUTLER et al.

Syllabus

¶0 1. APPEAL AND ERROR--Filing of petition in error not operative until compliance with statutory requirements such as payment of fee.
The filing of a petition in error depends upon the terms of statute authorizing it and will not become operative until the requisites are first complied with, and if a fee is made a necessary coincident thereto, no filing is accomplished or effected without the payment of such fee.
2. SAME--Appeal not lodged within six months period dismissed.
Where a proceeding in error is not filed in this court until after the expiration of six months from the date of the judgment or order appealed from, it will be dismissed for want of jurisdiction.

Appeal from District Court, Marshall County; J. 1. Goins, Judge.

Action to quiet title by C. Rollins Brown against W. C. Butler, Veda Ayres, and E. E. Ayres. From a judgment for the defendants, plaintiff appeals. Dismissed.

Wall & Green, of Sallisaw, for plaintiff in error.
Reuel W. Little and Jack H. Smith, both of Madill, for defendants in error.

PER CURIAM.

¶1 This is an appeal by the plaintiff in error from a final order entered on the 15th day of December, 1941. The record was filed herein June 16, 1942. A motion to dismiss has been filed for the reason that the appeal was not lodged within time as provided by 12 0. S. 1941 §972. The appeal must be dismissed.

¶2 The clerk has made a notation that the record was received on the 13th day of June, 1942, but no deposit was received until a cashier's check for $25 arrived in the clerk's office by mail on the 16th day of June, 1942.

¶3 It is the duty of the plaintiff in error to deposit $25 with the record at the time the appeal is taken. 20 0. S. 1941 § 15. A check received in the clerk's office on the 16th day of June, 1942, is not sufficient to sustain the appeal, when the final order from which the appeal is taken was entered December 15, 1941. See, in this connection, in an almost identical fact situation, Converse v. Berry, 131 Okla. 188, 268 P. 235. A case-made or record which is not filed within six months from the date of the final order from which the appeal is taken is not filed in time, and this court is without jurisdiction to entertain the appeal. Ryan v. Sarkeys, 113 Okla. 76, 238 P. 426; Converse v. Berry, supra; Cummings v. Price, 88 Okla. 206, 212 P. 602; Bishop v. Harris, 168 Okla. 626, 34 P.2d 243.

¶4 The appeal is dismissed.

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