Opinion
No. 3779
Opinion Filed July 28, 1914. Rehearing Denied October 20, 1914.
Error from District Court, Tillman County; Frank Mathews, Judge.
Action between W. T. Waggoner and J. H. Mounts and W. A. Stinson, a copartnership. From the judgment of the court Waggoner brings error. Dismissed.
R. E. Weathers and Stevens Myers, for plaintiff in error.
Mounts Davis and Gray McVay, for defendants in error.
This case was tried on October 9, 1911, and the jury returned a verdict in favor of the defendants in error. A motion for new trial was promptly filed and overruled by the court on October 12, 1911. A case-made was prepared and served December 9, 1911. An order of court extending the time for making and serving a case-made 60 days, shows on its face that it was filed January 24, 1911, which is the date the case-made was settled and signed by the trial judge.
Upon the date of the submission of this case for decision, July 17, 1914, the defendants in error filed a motion to dismiss the same for the following reason:
"Because this is an attempted appeal by petition in error and case-made and the purported case-made was not served within three days after the overruling of motion for a new trial, and the order extending time to make and serve a case-made, was not itself filed in the district court until after the time therein granted and extended, had expired; and the same was not a part of the case-made when served."
We have examined the condition of the record and believe the point well taken on the authority of Nelson v. Pittsburgh Mortgage Inv. Co., 43 Okla. 208, 141 P. 1197. That case was in the identical situation of this one, and therein Chief Justice Kane, speaking for the court, said;
"The order extending time to make, serve and file a case-made was not itself filed in the district court until the time therein granted and extended had expired; and the same was not a part of the case-made when served."
Counsel also cite the following cases which are more or less in point: Springfield F. M. Ins. Co. v. Gish, Brook Co., 23 Okla. 824, 102 P. 708; Ellis v. Carr, 25 Okla. 874, 108 P. 1101; Casner v. Smith, 28 Okla. 303, 114 P. 255; Fife v. Cornelous, 35 Okla. 403, 124 P. 957.
The cause should be dismissed.
By the Court: It is so ordered.