CLOUD v. KELLERT

CLOUD v. KELLERT
1952 OK 340
249 P.2d 1010
207 Okla 258
Case Number: 35667
Decided: 10/21/1952
Supreme Court of Oklahoma

Syllabus

¶0 APPEAL AND ERROR - Appeal dismissed where not filed within statutory time. Where an appeal is not lodged in this court within three months as provided by 12 O.S. 1951 § 972, or within the time given by the trial court extending such time, this court is without jurisdiction to review the appeal.

Appeal from Court of Common Pleas, Tulsa County; Lewis C. Johnson, Judge.

Action for breach of contract. From a judgment for plaintiffs, defendants appeal. Dismissed.

William J. Threadgill and Rosenstein, Fist & Shidler, Tulsa, for plaintiffs in error.

Kavanaugh Bush, Tulsa, for defendants in error.

DAVISON, J.

¶1 This is an action commenced by Paul Kellert and Evelyn Kellert, doing business as Paul's Grocery, hereinafter called plaintiffs, to recover in damages for breach of contract against Frank Cloud et al., hereinafter referred to as defendants.

¶2 Plaintiffs brought this action seeking to recover $395 allegedly due them by defendants for certain personal property delivered to said defendants under the terms of an oral contract. A trial to a jury resulted in a verdict and judgment for plaintiffs for the amount sued for. Defendants' motion for new trial was overruled and notice of intention to appeal was duly given.

¶3 On June 13, 1952, and within the period of time formerly allowed, the trial court entered an order granting a total of 90 days in addition to the three months allowed by statute in which to appeal to this court. This period expired on August 13, 1952. This appeal was filed August 15, 1952.

¶4 A motion to dismiss has been filed for the reason that the appeal was not perfected within the time allowed and for the further reason that the case-made was not served within 15 days or within the time given by a valid order extending the time in which to make and serve the case. The appeal must be dismissed.

¶5 Under 12 O.S. 1951 § 972, an appeal must be lodged in this court within three months from the date of the order entered from which the appeal is taken or within the time allowed by the trial court extending such time. This was not done. This court is without jurisdiction to review the appeal. Having reached this conclusion, we need not consider the other ground presented.

¶6 Appeal dismissed.

¶7 HALLEY, V.C.J., and WELCH, GIBSON, JOHNSON, O'NEAL, and BINGAMAN, JJ., concur.