HUGH BREEDING Inc. v. GODWIN

HUGH BREEDING Inc. v. GODWIN
1946 OK 299
173 P.2d 917
197 Okla. 637
Case Number: 32733
Decided: 10/29/1946
Supreme Court of Oklahoma

HUGH BREEDING, Inc.,
v.
GODWIN
Syllabus

¶0 APPEAL AND ERROR-Nullity of case-made not served within legal 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 the court, the same is a nullity and brings nothing before the court for review.

Appeal from Court of Common Pleas, Tulsa County; Carter Smith, Judge.

Action in damages by Clarence Godwin against Hugh Breeding, Inc. From a judgment for plaintiff, defendant appeals. Dismissed.

Rosenstein, Fist & Shidler, of Tulsa, for plaintiff in error.
E. M. Connor, of Tulsa, for defendant in error.

PER CURIAM.

¶1 This proceeding was commenced August 1,1946, by the filing of the petition in error with case-made attached. A motion to dismiss has been filed by the defendant in error for the reason that the case-made was not served within 15 days after the order appealed from was entered or within a valid extension thereof granted by the trial court. The case-made was served under an order dated May 4, 1946. A motion to strike was filed in the trial court whereupon the court found that the order was in fact entered on May 14th and ordered the same stricken. The time in which to make and serve case-made, therefore, expired under the former orders entered by the trial court on May 6th and the order originally dated May 4th and found by the trial court to be dated May 14th was after the expiration of the last prior valid order. Where plaintiff in error fails to make and serve a case-made within the time allowed by statute or within the time extended by the court, the same is a nullity and brings nothing before the court for review. W. T. Rawleigh Co. v. Mills, 117 Okla. 283, 246 P. 614; Whitten v. Farm & Home Savings & Loan Ass'n of Missouri, 184 Okla. 132, 85 P.2d 759; Wright v. Wright, 191 Okla. 356, 129 P.2d 1007.

¶2 After the hearing by the trial court and the striking of the order which originally bore the date May 4, 1946. the defendant attempted by filing successive motions for new trial to vacate the order formerly made and to extend the time in which to appeal. The defendant insists the case is regularly here on the proceedings on the motion to vacate and grant a new trial on the ground that the case-made could not be made within the time required by law. We are convinced that there is nothing in the proceedings on said motions which warrants us in reviewing the action on the motions on this record. We have held that a party cannot by subsequent motions addressed to the court extend the time for appeal. Chestnut v. Overholser, 75 Okla. 190, 182 P. 683; Philbrock v. Home Drilling Co., 117 Okla. 266, 246 P. 457; McCornack v. Fleming, 70 Okla. 50, 172, P. 952.

¶3 The appeal is dismissed.

¶4 GIBSON, C. J., HURST, V. C. J., and OSBORN, BAYLESS, WELCH, and DAVISON, JJ., concur.