Opinion
No. 3346
Opinion Filed May 14, 1912.
APPEAL AND ERROR — Case-Made. An order extending the time for the making and serving a case-made, made after the expiration of the time fixed by former order of the court or trial judge, is void.
(a) A case-made made and served within the time fixed by such void order is a nullity, and cannot be considered as such by this court.
(Syllabus by the Court.)
Error from District Court, Garvin County; R. McMillan, Judge.
Action by J. W. Graham and others against Lovejoy, Russell James. Judgment for plaintiffs, and defendants bring error. Dismissed.
Giddings Giddings and Jas. S. Twyford, for plaintiffs in error.
J. W. Thompson and B. W. Patterson, for defendants in error.
Motion for new trial, having been filed in due time, was overruled on May 29, 1911. The court on said date also made the following order:
"And defendants are given by the court, in open court, ninety days to make, then ten days for plaintiff to suggest amendments and five days to settle a case-made for the Supreme Court and sixty days thereafter to file same, with petition in error, in the Supreme Court."
Plaintiffs would not be required to suggest amendments until the case-made had been made and served upon them. The case-made was not served upon the plaintiffs until after said ninety days had expired; but it is insisted by the plaintiffs in error that it was served upon plaintiffs within fifteen days after the expiration of said ninety days, and that until the ten days allowed to suggest amendments and five days to settle had expired the court had jurisdiction to make an order extending the time in which to make and serve a case-made; but no authorities have been cited by counsel to sustain this contention, and we think that none can be found.
It is settled that an order made after the expiration of the time allowed for making and serving a case-made, extending the time for such purpose, is a nullity; and a case-made served out of such time cannot be considered. Mutual Trust Co. v. Farmers' Loan Security Co., 27 Okla. 414, 112 P. 967; Lathim v. Schlack, 27 Okla. 522, 112 P. 968; Maddox v. Drake, 27 Okla. 418, 112 P. 969; Soliss v. Davis, 28 Okla. 496, 114 P. 609; Ellis et al. v. Carr, 25 Okla. 874, 108 P. 1101; Bettis v. Cargile et al., 23 Okla. 301, 100 P. 436.
It follows that this proceeding in error must be dismissed.
TURNER, C. J., and HAYES, KANE, and DUNN, JJ., concur.