Opinion
No. 20738
Opinion Filed November 26, 1929.
(syllabus.)
1. Appeal and Error — Time for Perfecting Appeal not Extended by Filing Unnecessary Motion for New Trial.
Filing and determination of a motion for new trial of a contested question of fact, not arising on the pleadings, but upon objection to the confirmation of the sale of real estate and upon motion to confirm the sale, is unnecessary to authorize this court to review the order made on such hearing and the filing of such unauthorized motion for new trial in such proceedings does not extend the time in which to make and serve a case-made, nor does it extend the time in which to file an appeal.
2. Same — Nullity of Case-Made not Served Within Legal Time.
Where a case-made is not served within the time prescribed by law or valid order of the trial court, such case-made is a nullity and brings nothing before this court for review.
3. Same — Dismissal of Appeal When not Perfected Within Legal Time.
Proceedings on appeal to this court must be commenced within six months from the rendition of the final judgment or order appealed from, or the appeal will be dismissed.
Error from District Court, Tulsa County; Edwin R. McNeill, Judge.
From an order of the trial court denying objection to the confirmation of judicial sale of real estate and confirming the sale, in favor of the Monarch Cement Company, Mrs. George D. Lambert appeals. Dismissed.
Louis W. Pratt, for plaintiff in error.
William C. Alley and Hunt Eagleton, for defendant in error.
This is an appeal from an order of the district court of Tulsa county made on the 19th day of February, 1929, denying plaintiff in error's objection to the confirmation of a judicial sale of real estate upon execution and confirming the sale. Oral and documentary evidence was introduced upon the hearing had before the trial court, resulting in the order appealed from. At the time of the making of the order appealed from no order was made extending the time in which to make and serve case-made, nor was such an order made within 15 days thereafter. Plaintiff in error filed her motion for new trial, which was overruled March 23, 1929, and on this date the trial court made an order extending the time in which to make and serve case-made. The case-made was served on the defendant in error on August 15, 1929, and thereafter settled and signed, and with the petition in error was filed in this court September 21, 1929. The fling and determination of a motion for new trial of a contested question of fact not arising upon the pleadings but upon a motion is unnecessary to authorize this court to review an order made on such hearing. Powell v. Nichols, 26 Okla. 734, 110 P. 762; Ginn v. Knight, 106 Okla. 4, 232 P. 938; Buchanan v. Eddleman, 125 Okla. 184, 256 P. 520; Revard v. White, 139 Okla. 102, 281 P. 258, and does not extend the time in which to make and serve a case-made. Ginn v. Knight supra; Buchanan v. Eddleman, supra; Revard v. White, supra. The order of the court made on March 23, 1929, extending the time in which to serve case-made, is a nullity for the reason the court was without jurisdiction to make the same, such order not having been made within 15 days time allowed by law in which to serve case-made after the making of the order appealed from. Petty v. Foster, 122 Okla. 152, 252 P. 836; Revard v. White, supra. The filing of such unauthorized motion for new trial does not extend the time in which to file an appeal in this court. Barfield Petroleum Co. v. Pickering Lumber Co. et al., 137 Okla. 151, 278 P. 391.
The case-made served on August 15, 1929, not having been served within the time allowed by law or a valid order of the court, is a nullity and brings nothing before this court for review, and the petition in error not having been filed in this court within the six months from the date of the order appealed from, this court is without jurisdiction to review the order complained of, and upon motion of the defendant in error, the appeal is dismissed.
Note. — See under (2) 2 R. C. L. p. 159; R. C. L. Perm. Supp. 352.