MCLEAN v. MCLEAN

MCLEAN v. MCLEAN
1915 OK 120
147 P. 302
45 Okla. 765
Case Number: 7045
Decided: 03/02/1915
Supreme Court of Oklahoma

MCLEAN
v.
MCLEAN et al

Syllabus

¶0 APPEAL AND ERROR--Service of Case-made--Extension of Time--Dismissal. An order, purporting to grant an extension of time in which to serve case-made for appeal to the Supreme Court, made after the expiration of time formerly allowed, is a nullity, and appeal based upon service of case-made thereunder will be dismissed.

Error from District Court, Osage County; R. H. Hudson, Trial Judge.

Action between Walter Williford McLean and Thomas J. McLean and others. From the judgment, Walter Williford McLean brings error. Dismissed.

L. F. Roberts and A. F. Sims, for plaintiff in error.
Leahy & MacDonald and R. B. Boone, for defendants in error.

BROWN, J.

¶1 Motion to dismiss appeal was filed in this case by defendant in error January 25, 1915; and no answer there has been filed, nor time for filing same extended. An examination of the record discloses that judgment was rendered June 18, 1914, at which time 90 days was given in which to serve case-made, which time expired September 16, 1914. September 15, 1914, an extension of 40 days from that date was granted, which would have expired October 25, 1914, but for a further extension allowed of 15 days on and from that date bringing the time within which service could be made up to November 9, 1914, but same was not made until November 14, 1914. On December 12, 1914, plaintiff in error filed motion for an extension of the time in which service of case-made could be had, which reads in part as follows:

"That the findings of fact and conclusions of law made and found by the court in the above entitled case were not made and filed in the office of the clerk of the district court until November 9, 1914; that when these findings of fact and conclusions of law were filed with the clerk, the attorneys for the said Walter Williford McLean were under the impression that they had until the 15th day of November, 1914, in which to file and serve said case-made with the attorneys for Thomas J. McLean et al.; that it is the belief of L. F. Roberts, one of the attorneys for Walter Williford McLean, that the judge of the district court was of the opinion that the attorneys for the said Walter Williford McLean had until the 15th day of November, 1914, in which to file and serve said case-made with the attorneys of Thomas J. McLean et al.; that the case was in fact served on the attorneys for Thomas J. McLean et al. on the 14th day of November, 1914, but the said L. F. Roberts has since discovered that the same was served out of time, and that same should have been served on or before the 9th day of November, 1914."

¶2 Upon the application containing the above admission that the time formerly allowed for service of case-made had expired more than 30 days prior thereto, the court attempted to make an order extending such time to include the 14th day of November, 1914, said order being dated December 12, 1914, and indorsed filed November 12, 1914. This order, it is clear, the court had no jurisdiction to make, and the same was therefore void and did not operate retrospectively so as to render valid the service of said case-made after the time therefor had expired.

¶3 The appeal is therefore dismissed.

¶4 All the Justices concur.