FRANK v. HERRON

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FRANK v. HERRON
1953 OK 299
262 P.2d 450
Case Number: 36164
Decided: 10/20/1953
Supreme Court of Oklahoma

Syllabus

¶0 1.12 O.S.1951 § 972 provides that appeals must be taken within three months from the rendition of the judgment or final order complained of, but that the trial court in its discretion may extend the time for not to exceed six months. Under the provisions of this amendment, where no order is made by the trial court within three months from the rendition of the judgment or final order complained of, extending the time within which to file an appeal in this court, such judgment becomes final, and the trial court is thereafter without jurisdiction to extend the time within which to file such appeal.

2. An order made by the trial court extending the time within which to make and serve case-made beyond the statutory time within which an appeal is required to be effected, does not extend the time to appeal.

Appeal from the District Court of Payne County, Kenneth Hughes, Assigned Judge.

Swank & Swank, Stillwater, for plaintiff in error.

Winfrey D. Houston, Guy L. Horton and Henry W. Hoel, all of Stillwater, for defendants in error.

PER CURIAM.

¶1 This is an appeal from an order of the trial court overruling a motion for new trial and is brought by E.J. Frank, plaintiff in error, against Leonard G. Herron and others to review the order overruling the motion for new trial.

¶2 This order was entered on May 8, 1953. At the time it was entered Kenneth Hughes, assigned Judge, entered the order and gave an extension of time in which to make and serve case-made. Thereafter, on the 19th day of June, 1953, Kenneth Hughes entered an order granting additional time in which to file the case in the Supreme Court, extending time for said filing until September 5, 1953. This order was after the time for the assignment of Kenneth Hughes as trial judge had expired. Thereafter the trial court entered an order dated August 14, 1953. This order was made to serve two purposes: First, it authorized the extension of time in which to make and serve case-made for the reason the party appealing had been unavoidably prevented from preparing the case-made within the original time. It also attempted to authorize the filing of the case in the Supreme Court after the expiration of three months allowed by statute. This order, in so far as it attempted to extend the time for appeal, was invalid. Adams v. Hobbs, 204 Okl. 85, 226 P.2d 913, and Durham v. Sharum, 203 Okl. 426, 222 P.2d 1029.

¶3 A motion to dismiss has been filed for the reason the case was not filed in the Supreme Court within three months from the order entered on May 8, 1953, or any valid order extending the time in which to file the appeal. The motion to dismiss must be sustained. An order entered by the assigned judge after the expiration date of the assignment purporting to extend the time for service of a case-made is void. Graf Packing Co. v. Palphrey, 178 Okl. 95, 62 P.2d 53. Under the holding of that case and related cases a trial judge specially assigned cannot perform the functions of a court or trial judge other than to settle the case-made in a case which he tried. The order of June 19, 1953, in so far as it attempted to extend the time for the appeal was likewise void.

¶4 Since the appeal was not filed within three months from the date of the order entered May 8, 1953, or any valid order extending the time, the appeal is dismissed.

¶5 HALLEY, C.J., JOHNSON, V.C.J., and WELCH, CORN, DAVISON, ARNOLD, O'NEAL and WILLIAMS, JJ., concur.